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Recent Developments in Eminent Domain
Robert H. Thomas*

past year, as well as some notable inverse condemnation and property
rights cases that involve issues common to eminent domain litigation.

I. U.S. Supreme Court: Horne v. Department of
Agriculture: Way More than Silly Raisin Jokes
“Separate educational facilities are inherently unequal.”
Chief Justice Earl Warren, Brown v. Board of Education1

“The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social
Justice Oliver Wendell Holmes, dissenting in Lochner v. New York2

“. . . prejudice against discrete and insular minorities . . .”
Justice Harlan Fiske Stone, United States v. Carolene Products Co.3

“Raisins . . . are a healthy snack.”
Chief Justice John Glover Roberts, Horne v. Department of Agriculture4

A Supreme Court win is a win, particularly by a margin of eight-to-
one, so no one ought to complain too much about the Court’s opinion
in Horne v. Department of Agriculture, holding that the United States
Department of Agriculture’s requirement that raisin producers physi-
cally turn over a percentage of their yearly crops to the government
without being provided compensation is a taking in violation of the
Fifth Amendment.5

* Damon Key Leong Kupchak Hastert, Honolulu, Hawaii. Vice-Chair, ABA Sec-
tion of State and Local Government Law. LLM, Columbia Law; JD, University of
1. 347 U.S. 483, 495 (1954).
2. 198 U.S. 45, 75 (1905).
3. 304 U.S. 144, 152 (1938).
4. (Horne II), 135 S. Ct. 2419, 2431 (2015).
5. Id. at 2443.
940 The Urban Lawyer Vol. 48, No. 4 Fall 2016

A. All Joking Aside
Because the case involved California raisin farmers and a regulatory
scheme that was so easily subject to mockery, the case has spawned
more than a few jokes and horrible puns in the popular media and com-
mentariat. It certainly brought out the Chief Justice’s dry wit, as re-
flected in the above quote. No less than The Daily Show did a piece car-
icaturing the USDA’s regulation of raisins (“the product,” according to
the investigator interviewed, with plaintiff Marvin Horne labeled “a
modern day Jesse James”), and nearly every report on the case has
not resisted the temptation to make very bad raisin jokes.6 Even the
Court could not hold back, and in addition to the Chief Justice’s bon
mot, Justice Thomas noted in his short concurring opinion that sending
the case back to the Ninth Circuit for yet another try “would be a fruit-
less exercise.”7 And do not forget those dancing raisins.
The case was also subject to mockery on the substantive side. The
Ninth Circuit’s rationale upholding the law was so transparently ridic-
ulous that the Government did not even defend it seriously in the
Supreme Court. The panel concluded that personal property is not
subject to the same constitutional protection as real property, and
thus the unconstitutional conditions doctrine of Nollan,8 Dolan,9 and
Koontz10 was not applicable when raisins are seized.11 So, it was
not that hard to predict that the Hornes would prevail in their second
trip to the Court.
Although “raisins . . . are a healthy snack”12 certainly will not enter
the Supreme Court Quote Hall of Fame (while clever, the phrase has
not even generated an internet meme), it would be a mistake to rele-
gate the case to the humor file, or to write-off the Court’s ruling as
a result so obvious that there was never any serious question about
the outcome.
B. Round I: Takings Defenses
Horne is also one of those cases that could easily be overlooked by
land use lawyers because it is not a traditional regulatory takings or

6. The Daily Show, Season 18, Episode 142 (Comedy Central television broadcast
Aug. 13, 2013).
7. 135 S. Ct. at 2433.
8. Nollan v. Cal. Coastal Comm’n, 482 U.S. 825 (1987).
9. Dolan v. City of Tigard, 512 U.S. 374 (1994).
10. Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586 (2013).
11. Horne v. Dep’t of Agric. (Horne I-A), 750 F.3d 1128, 1141-43 (9th Cir. 2014),
rev’d, 135 S. Ct. 2419 (2015).
12. Horne II, 135 S. Ct. 2419, 2431 (2015).
Recent Developments in Eminent Domain 941

inverse condemnation case in which a property owner asserted a pos-
itive claim that the government either physically harmed or overregu-
lated her real property, such that it was the equivalent of the exercise
of eminent domain, and sought just compensation as the remedy.
The takings claim arose as a defense by the Hornes to what Justice
Kagan characterized as “perhaps the world’s most outdated law” the
first time the case went up to the Supreme Court two years ago.13
The Hornes asserted the USDA could not legally impose fines on
them for violating a statute that regulates the production and sale of
raisins, because to do so would violate the Takings Clause.14 They de-
fended against the fines under the Administrative Procedures Act
(APA), seeking for the fines to be voided.15 They did not seek just
compensation. Indeed, the remedy was the issue resolved unanimously
in their favor in the first Supreme Court opinion, which held that the
Hornes were not required to press their takings claim exclusively in
the U.S. Court of Federal Claims, and their remedies for a taking
were not limited to just compensation.16
The Hornes could, the Court held in that opinion, raise a takings de-
fense and were not limited to the bizarre, wasteful process the Ninth
Circuit would have required them to pursue: pay the fines in the dis-
trict court, and then later seek reimbursement as just compensation
by way of a Tucker Act claim in the Court of Federal Claims,
which was, in the Ninth Circuit’s view, the only court with subject-
matter jurisdiction to consider any form of a takings claim against
the federal government.17
C. The World’s Most Outdated Statute
The litigation began when the USDA fined the Hornes, who had struc-
tured their raisin farming and processing operation in such a way that
they believed they were exempt from the reach of the statute.18 The
regulatory scheme is, as Justice Kagan aptly noted, complex.19 But
here is the short version: The statute is a New Deal-era price control

13. Transcript of Oral Argument at 48-49, Horne v. Dep’t of Argic. (Horne I), 133
S. Ct. 2053 (2013), remanded to 750 F.3d 1128 (9th Cir. 2014), rev’d, 135 S. Ct. 2419
14. Horne I, 133 S. Ct. at 2059.
15. Id. at 2059-60.
16. Id. at 2063-64.
17. Id. at 2060.
18. Id. at 2059-60.
19. See Transcript of Oral Argument at 48-49, Horne I, 133 S.Ct. 2053; 7 U.S.C.
§ 608c (2012).
942 The Urban Lawyer Vol. 48, No. 4 Fall 2016

designed to maintain the market for raisins by limiting supply through
something called a “raisin marketing order.”20 This Article will not get
into the statute’s technical distinction between a raisin “producer” (es-
sentially, someone who grows raisins) and a raisin “handler” (who buy
raisins from the producers, and who manages the sale further down the
supply chain), but suffice it to say that the yearly raisin marketing
order required producers to physically set aside a certain percentage
of their yearly crops “for the account of ” the Raisin Administrative
Committee, (an agent of the USDA) an industry group which estab-
lishes how much of a producer’s yearly raisin crop cannot be sold.21
Title to the “reserve-tonnage raisins” actually transfers to the govern-
ment, a fact which the Court found critical.22
The Raisin Administrative Committee, in turn, controls the sale of
these reserve-tonnage raisins—which are sold in secondary markets
or simply given away—and keeps the proceeds for itself to cover
the cost of administering the program, with the excess, if any, being
returned to the handlers.23 The bottom line is that producers may be
compelled to turn over title of a large percentage of the raisins they
grow to the government (actually, an agent of the government, the
Raisin Administrative Committee, but any distinction there was aban-
doned by the government during oral arguments), and the statute itself
provides no compensation mechanism.
The purported goal of the scheme is to stabilize the raisin market by
limiting the amount of raisins grown each year that can be sold.24 At the
time of the statute’s creation, raisin farmers were not good at predicting
the raisin market and, as a result, they grew more than the market could
bear, and the prices dropped.25 Until the Hornes, however, no one asked
whether the program was still a good idea, nor had anyone challenged it.
The Hornes established a system where they were both producers
and handlers, but they did not comply with the reserve-tonnage re-
quirements.26 This raised the ire of the USDA, which imposed massive
fines, nearly $700,000, which were affirmed during the USDA’s reg-
ulatory appeals process.27 The Hornes sought judicial review in the
U.S. District Court under the APA, interposing a takings defense

20. Horne I, 133 S. Ct. at 2056-57.
21. Id. at 2057-58.
22. Id. at 2061.
23. Id. at 2058.
24. Id. at 2057.
25. Id.
26. Id. at 2058-59.
27. Id. at 2059.
Recent Developments in Eminent Domain 943

that argued, in essence, that the USDA cannot do this because it is
physically taking the raisins and, in effect turning them over to some-
one else for public benefit or use, all without just compensation.28
D. Round II: Fast Times in the Ninth Circuit
After the Supreme Court (in the first round) rejected the Ninth Cir-
cuit’s jurisdictional dodge which concluded that the only forum in
which a property owner can raise a takings argument (even as a de-
fense) is the Court of Federal Claims, the Supreme Court sent the
case back to the Ninth Circuit for a decision on the merits.29
That court pulled another fast one. (“Fast one” is used because the
Ninth Circuit panel had already ruled on the merits, issuing an opinion
in the first case, and then withdrawing it in favor of the no-jurisdiction
opinion which the Supreme Court eventually vacated. In the with-
drawn opinion, the Ninth Circuit had ruled that there was no taking).30
So it was no surprise that when the panel got the case back on the mer-
its, it held that this was not a taking because raisins are personal prop-
erty and not real property, thus they are not subject to the “physical
occupation” per se rule of Kaiser Aetna,31 Loretto,32 and similar
cases.33 The basis of the Ninth Circuit’s decision was so outrageous
that the Government did not seriously defend it in the Supreme
Court, and although those who follow regulatory takings cases were
a bit surprised that the Supreme Court granted certiorari again, simply
because this was the second time up (and that is rare), they truly were
not that surprised given the low-hanging curve ball which the Ninth
Circuit’s rationale had offered up. There has never been a substantive
distinction between personal and real property for purposes of takings
or expropriation, back to the colonial days and even earlier, so it was
hard to see how this rationale could survive.
It did not, and the Supreme Court’s majority opinion expressly
tracked the Hornes’ three Questions Presented, answering each seriatim.

28. Id.
29. Id. at 2064
30. Compare Horne v. Dep’t of Agric., No. 10-15270, 2011 WL 2988902 at 9467-
68 (9th Cir. July 25, 2011), opinion amended and superseded, 673 F.3d 1071 (9th Cir.
2012), rev’d, 133 S. Ct. 2053 (2013), remanded to 750 F.3d 1128 (9th Cir. 2014),
rev’d , 135 S. Ct. 2419 (2015),
07/25/10-15270.pdf, with Horne v. Dep’t of Agric., 673 F.3d 1071, 1079-80 (9th
Cir. 2012), rev’d , 133 S. Ct. 2053 (2013), remanded to 750 F.3d 1128 (9th Cir.
2014), rev’d , 135 S. Ct. 2419 (2015).
31. Kaiser Aetna v. United States, 444 U.S. 164 (1979).
32. Loretto v. Teleprompter Manhattan CATV, 458 U.S. 419 (1982).
33. Horne I-A, 750 F.3d at 1144.
944 The Urban Lawyer Vol. 48, No. 4 Fall 2016

Every justice but Justice Sotomayor rejected the Ninth Circuit’s ratio-
nale.34 The opinion, authored by the Chief Justice, found it critical that
title to the raisins actually transferred from the Hornes to the govern-
ment and that the raisins were required to have been “physically set
aside.”35 Magna Carta and the Takings Clause in the United States
constitution were probably adopted in at least partial response to the
“arbitrary and oppressive mode of obtaining supplies for the army”—-
which were takings of personal, not real, property.36
Once it acknowledged that the same rules govern personal and real
property, the eight-justice majority applied the long-standing physical
takings rule, easily rejecting the Ninth Circuit’s conclusion that
Lucas37 established a distinction between physical takings of personal
property and takings of real property.38 The Lucas language relied on
by the Ninth Circuit involved regulatory takings and not actual appro-
priations; Lucas was not a physical taking case, but rather a regulatory
wipeout: an entirely different animal.39
The Court also rejected Justice Sotomayor’s assertion that this was not
a taking because the regulations did not result in a total wipeout of the
raisins’ value.40 After all, the Government argued that the regulations
allowed in certain circumstances for producers, such as the Hornes, to
potentially get some return, and a hypothetical, future interest is en-
ough to say that the raisins were not taken. The Court rejected this the-
ory, holding that a “contingent interest of indeterminate value” does
not lessen the blow of a physical appropriation of the raisins.41
To reach this result, the majority rejected each of the cases which
the USDA had raised to argue that the Court had, in years past, upheld
similar schemes.42 The government prohibition on the sale of eagle
feathers was not a confiscation of the feathers and left their owners
with other valuable rights, so it was not a regulatory taking.43 But

34. Horne II, 135 S. Ct. 2419, 2437 (2015) (Sotomayor, J., dissenting).
35. Id. at 2428 (majority opinion).
36. Id. at 2426 (internal citations omitted).
37. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).
38. Horne II, 135 S. Ct. at 2427-28.
39. Id. at 2427; see Lucas, 505 U.S. at 1015.
40. Horne II, 135 S. Ct. at 2428-29.
41. Id. at 2423.
42. Id. at 2428-29.
43. Andrus v. Allard, 444 U.S. 51, 68-69 (U.S. 1979).
Recent Developments in Eminent Domain 945

the Hornes, unlike the owners of the eagle feathers, actually lost pos-
session of their reserve tonnage raisins, so it was not relevant whether
the requirement left them with value.44 Nor are raisins like dangerous
pesticides, so in Monsanto,45 the government could validly condition
entry into the pesticide market on the surrender of trade secrets.46 This
is where the “healthy snack” bit came in. And raisins are not oysters,
which are wild animals owned by the state on state land.47 Raisins, by
contrast, are private property, grown on private land.48
The Court also rejected the USDA’s attempt to characterize the regu-
lation as a mere “use restriction” akin to a condition in a land use per-
mit.49 The Government had argued that it was the master of the raisin
market, and if the Hornes wanted to play, they had to pay the price of
admission. Which they did voluntarily, according to the Government.
Having agreed to participate, they could not object to the price of the
ticket: the raisin marketing order’s restrictions. The USDA also argued
the Hornes were not being forced to use their grapes for raisins, or to
even grow grapes at all. This “let them sell wine” theory was also
soundly rejected by the majority.50
Interestingly, the majority completely ignored Yee v. City of Escon-
dido,51 a case relied upon by the USDA, which held that owners of
mobile home parks which rented space to mobile-home owners did
not have a physical takings claim arising from an ordinance control-
ling the rent they could charge, because they voluntarily opened up
their properties to the renters.52 Yee’s rationale, if applied to the
Hornes, might have supported the USDA’s argument that no one is
forcing the Hornes to grow and sell raisins; that the Hornes can always
do something else with their grapes and not turn them into raisins.
Which would take the wind out of the Hornes’ sails on the physical

44. Horne II, 135 S. Ct. at 2429.
45. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1020 (1984).
46. Horne II, 135 S. Ct. at 2430.
47. Id. at 2431 (distinguishing Leonard & Leonard v. Earle, 279 U.S. 392 (1929),
which upheld a Maryland state tax requiring oyster farmers to turn over to the state
10% of the empty oyster shells which they harvested, or pay a monetary equivalent).
48. Horne II, 135 S. Ct. at 2431.
49. Id. at 2430-31.
50. Id. at 2430.
51. 503 U.S. 519 (1992).
52. Id. at 527-29; Brief for Respondent at 30-31, Horne II, 135 S. Ct. 2419 (2015).
946 The Urban Lawyer Vol. 48, No. 4 Fall 2016

takings argument. But only Justice Sotomayor’s dissent mentioned
that decision.53
The majority did cite PruneYard Shopping Center v. Robins, the case
in which the Court held there was no taking when the California Supreme
Court interpreted the free speech provision of the California Constitution
to bar the owner of a shopping center from excluding someone based on
the content of their speech.54 That can be seen as a very unsatisfactory
reading of PruneYard, because it is difficult to see in either that case
or Yee how the regulations at issue did not require a physical occupation,
at least to the same extent as the raisin marketing order did.
E. A Taking Without Compensation?
Finally, we get to the main disagreement: did the regulation which re-
sulted in the physical occupation of the Hornes’ raisins also provide
them “in-kind” compensation (and thus, there was no unconstitutional,
uncompensated taking)?55 Three Justices (Breyer, Ginsburg, and
Kagan) dissented in part, and wanted to send the case back to the
Ninth Circuit to figure out whether the Hornes may have benefitted
more from the regulations than the value of the taken raisins.56 If
so, no problem.
The majority rejected this argument, which seemed to be gaining
some traction during oral arguments, and held that nothing further
was needed.57 The appellate remedy was thus an outright reversal of
the Ninth Circuit with judgment entered for the Hornes, and not the
usual vacate-and-remand.
Chief Justice Roberts and the majority concluded that the just com-
pensation in this case had already been calculated: the amount of the
fine imposed by the USDA, which was supposedly based on market
value of the raisins.58 The point of this was not to calculate the com-
pensation that the Hornes are owed—recall that the takings argument
was raised as a defense to the fines imposed—the Hornes never paid
the fines, nor did they seek compensation in the Court of Federal
Claims, but a clever way for the majority to show that no compensation

53. Horne II, 135 S. Ct. at 2441 (Sotomayor, J., dissenting).
54. 447 U.S. 74 (1980); see Horne II, 135 S. Ct. at 2429 (5 S. Ct. at 2429)(“the
value of the use of the property as a shopping center largely unimpaired, so the reg-
ulation did not go ‘too far.’ ”).
55. Horne II, 135 S. Ct. at 2432.
56. Id. at 2433 (Breyer, J., concurring in part and dissenting in part).
57. Id. at 2432 (majority opinion); see Transcript of Oral Argument at 15-17,
Horne II, 135 S. Ct. 2419 (2015).
58. Horne II, 135 S. Ct. at 2433.
Recent Developments in Eminent Domain 947

had been offered. Indeed, the amount of the compensation was already
known, and the USDA had attempted to impose the cost on the Hornes
and not the other way around.59 Essentially, the majority concluded the
USDA had conceded that no compensation had been paid and thus there
was nothing to remand.
The Chief Justice’s sleight-of-hand was much too hard in the view
of those who follow regulatory takings. What mattered was that the
regulation itself did not provide for compensation and the USDA
did not offer any. There never was any need to calculate compensation
in this case, just determine that the government did not provide any
and the Hornes did not get any. The Court decided that in the first
case, when it held the Hornes could raise their takings defense in
the district court; that they did not need to pay the fine and then go
ask for it back as just compensation in an action in the Court of Fed-
eral Claims.60
F. Justice Breyer and Special Benefits
Justice Breyer and the dissenters’ disagreement was with the lack of
remand.61 He wrote that the case should have been sent back to the
Ninth Circuit to calculate whether the Hornes received just compensa-
tion, since the Takings Clause says “no takings without just compen-
sation.”62 Maybe the Hornes were compensated by other means, such
as having the market price of their raisins raised or stabilized, for ex-
ample. He did not know, so argued for remand (this is where the Chief
Justice’s clever maneuver worked in: the majority knew how much
compensation the Hornes would have been deprived—the amount of
the fine—and because the Government thus tacitly admitted that no
compensation had been paid, there was no need for a remand to calcu-
late it).
This average-reciprocity-of-advantage argument was not pushed too
hard by the Government and it was not in the Questions Presented.63
The Ninth Circuit had not decided it. “It was barely touched on in the
briefs,” according to Justice Breyer.64 So he did his own research and
theorizing, and the dissenters relied on Breyer’s version of the

59. Id.
60. Horne I, 133 S. Ct. 2053, 2063-65 (2013).
61. Horne II, 135 S. Ct. at 2433 (Breyer, J., concurring in part and dissenting in
62. Id. at 2433-34.
63. See Brief for Petitioner at i, Horne II, 135 S. Ct. 2419 (2015).
64. Horne II, 135 S. Ct. at 2433.
948 The Urban Lawyer Vol. 48, No. 4 Fall 2016

“benefits” rule to support their point that when looked at overall, the
Hornes might be better off in the program than outside it.
The benefits rule is from eminent domain: when a taking increases
the value of property, the increase, in some circumstances, has to be
taken into account.65 So if a new road takes property and that road cre-
ates access to the remaining land that was not there before, the land
may be worth more than before.
But this is not a general rule as Justice Breyer set out, but rather the
special benefits rule, applicable only in certain situations involving
(1) partial, and not total takings; (2) where the “benefits” are specific
to the remainder property, and not shared with the public; and (3) special
benefits to the remainder may only be set off against damages to the re-
mainder, and not to just compensation for the property actually taken.66
Justice Breyer was, in effect, trying to bootstrap a narrow just com-
pensation doctrine, that no party presented or argued, into the question
of whether there’s been a taking at all, even in a case of a physical oc-
cupation. Which seems wrong. This sounds more like “regulatory just
compensation” and not “regulatory takings.” Takings is concerned
with impact on the property, not value to the taker. And when there’s
been a physical taking, one really does not care how or if property not
taken has been benefited at all.
G. Lone Wolf
And what to make of Justice Sotomayor’s solo dissent, which argued
that there was no taking at all, because the USDA did not take all of
the Hornes’ rights in their raisins?67 The rights they have, according to
Justice Sotomayor, is that contingent remainder that was mentioned
earlier.68 To her, the raisins were like eagle feathers, like pesticides,
and like oysters. They are especially like mobile homes. To Justice
Sotomayor, a physical occupation is no different than other cases,
and must utterly destroy the value of property for it to be deemed a
taking.69 Which is just another way of bootstrapping in the Penn Cen-
tral70 ad hoc economic test into per se physical takings doctrine. A
non-starter with her fellow Justices, and rightly so.

65. Id. at 2432 (majority opinion).
66. See, e.g., 2 Philip Nichols, The Law of Eminent Domain sec. 249 (1917).
67. Id. at 2437-43 (Sotomayor, J., dissenting).
68. Id. at 2437.
69. Id. at 2440.
70. Penn Cent. Transp. v. N.Y.C., 438 U.S. 104, 123-26 (1978).
Recent Developments in Eminent Domain 949

H. Takeaways from Horne
Physical takings are still the Holy Grail of regulatory takings law. Al-
though regulation can depress the value of property severely without it
being a taking, a physical take is different.71 Even a small one. Does
the physical take fetish make sense? No, because why should a regu-
lation that nearly but does not totally wipe out the value of property be
for the most part deemed okay, while a de minimus physical intrusion
that causes little impact (Loretto) be treated like the apocalypse? No
good reason, as far as one can tell. But there is no likelihood the
Court will be abandoning this distinction in the foreseeable future.
The government cannot make the ticket for admission to the raisin
market conditional on giving up some of the product.72 This is the big-
gest point to take home from Horne, and a prime area for future cases.
Yes, the government can control markets, overwhelmingly. The line
that the Court is unwilling to cross, however, (with the sole exception
of Justice Sotomayor) is when those market controls require someone
to physically surrender things. Like raisins. Like a small portion of the
space on a rooftop for a cable box. And so forth.
Horne should leave takings lawyers doing what they have always done
in these type of cases: property advocates will seek the physical take or
its equivalent in the regulatory requirement, while police-power advo-
cates will argue that it is only regulation, and not the physical invasion
as in Loretto73 (permanent occupation), Kaiser Aetna74 (public ease-
ment for navigation), and now Horne75 (taking title and possession).
Horne left open some pressing questions. When is a requirement to
give up property an “exaction” that imposes a physical taking, and
when it is merely “economic regulation” reviewed under rational
basis? What about rent control; does Yee’s rationale that a physical oc-
cupation is not really a physical occupation if the owner “voluntarily”
opened up their land to renters survive Horne and the Court’s notice-
able lack of citation to Yee? And what of other, similar agriculture

71. Horne II, 135 S. Ct. at 2429 (majority opinion).
72. Id. at 2430.
73. Loretto v. Teleprompter Manhattan CATV, 458 U.S. 419 (1982).
74. Kaiser Aetna v. United States, 444 U.S. 164 (1979).
75. Horne II, 135 S. Ct. 2419 (2015).
950 The Urban Lawyer Vol. 48, No. 4 Fall 2016

programs? Can the government get around Horne simply by rewriting
the reserve-tonnage requirements as prohibitions on sale without re-
quiring a transfer of title, and thus mere regulatory restrictions on
use that do not impose a physical occupation?
The final thought on Horne is it says something that a case like this,
involving the pervasiveness of the regulatory Leviathan, dragged on
for so long and forced the property-owners to make two trips to the
Supreme Court before the government was compelled to let go of a
program that nearly everyone laughs at when they find out about it.

II. Public Use or Purpose—Power to Take
A. The Chicago Way: City Taking Non-Blighted
Property for Economic Development Was Not
Pretextual Because . . . Studies
In City of Chicago v. Eychaner, the Illinois Appellate Court upheld the
taking of private vacant land near the Chicago Loop so that it could be
transferred to the owners of a nearby chocolate factory (Blommer’s Fac-
tory).76 The court viewed this “A-to-B” taking as merely a part of an
area redevelopment and tax increment finance plan, which would
keep the chocolate factory from moving out as the area gentrified.77
The opinion contains a long recitation of the reasons for the taking,
how the Planned Manufacturing District (PMD) was designed to “pro-
tect[] the 2,800 industrial jobs located in the area, [to] prevent[] resi-
dential encroachment on the existing manufacturing facilities, and [to]
encourag[e] manufacturers to invest in their facilities,” and how the
process ultimately resulted in Eychaner’s land being transferred to
Blommer.78 In addition to the chocolate factory, the PMD area in-
cluded eight other “industrial firms.”79 But the opinion (and apparently
the plan) focused on Blommer’s chocolate factory. Ironically, Blom-
mer did not want to be included in the PMD because a property to
its south was already scheduled for a “massive residential develop-
ment,” which meant there would be no buffer between Blommer’s
heavy industrial use and these future new residents, who would be
sure to find “intolerable” the smell, noise, and traffic generated by
the chocolate factory.80

76. 26 N.E.3d 501 (Ill. App. Ct. 2015). For a visual depiction, see id. at 507.
77. Id. at 518.
78. Id. at 506.
79. Id. at 507.
80. Id. at 508.
Recent Developments in Eminent Domain 951

Because it wanted to avoid these future troubles, Blommer sug-
gested that the city exclude it from the PMD or prohibit the residential
development.81 Otherwise, it might have to leave Chicago and convert
its property to some other use.82 Or, the campus could be moved
north.83 Initially, these plans did not include Eychaner’s land, but
the very next month the city wrote to Blommer:
We are committed to keeping quality manufacturing firms, such as [Blommer] in
the City. To that end, we are very interested in helping your [sic] create a larger
‘industrial campus’ as a means to internalize your loading operations, limit traffic
impacts on adjacent streets, and provide room to expand.” The commissioner
wrote that the Plan Commission would: (i) work on the possibility of closing
parts of Hubbard Street and Jefferson Street; (ii) pursue the creation of a tax-
increment finance district to finance public infrastructure improvements and “any
potential acquisitions,” which now included Eychaner’s land; and (iii) defer ap-
proval of residential development south of Blommer’s plant “to explore design,
use and density issues.” The PMD, the commissioner noted, would “ensure that
properties to the north and east of [Blommer’s] factory are not developed for resi-
dential use,” and also made clear that Blommer’s “public support for this action
[was] crucial in getting this measure through the legislative process.84

By the following month the plan was even more concrete, and “Blom-
mer commissioned an architect to draw up a site plan for its expanded
campus[,] [t]hat plan included Eychaner’s land” and proposed using
the city’s eminent domain power to take it and transfer it to Blommer
for $1.85
The city complained that “Blommers seems to be negotiating as if
they have us over [a] barrel,” but ultimately a few months later, the
city adopted the PMD and began the tax-increment financing scheme
that would fund the thing.86 The city commissioned studies, and pro-
duced a sixty-eight page report which concluded:
[T]hat tax-increment financing would induce private investment and arrest blighting
factors in the area. Because the area had not been subject to growth and reinvest-
ment, the study reasoned that property owners would not invest in their properties
without tax-increment financing. The study anticipated benefits, including: (i) stron-
ger economic vitality; (ii) increased construction and long-term employment oppor-
tunities; (iii) replacement of inappropriate uses, blight, and vacant properties with
viable, high-quality developments; (iv) the elimination of physical impediments,
such as roads in poor condition; (v) the construction of public improvements to

81. Id. at 509.
82. Id.
83. Id.
84. Id. at 510-11.
85. Id. at 511.
86. Id. For a discussion on tax increment financing schemes, see generally SECTION
W. Andrew Gowder, Jr. eds., 2014).
952 The Urban Lawyer Vol. 48, No. 4 Fall 2016

attract private investment; (vi) job-training services to make the area more attractive
to investors and employers; and (vii) opportunities for minority- and women-owned
businesses to share in the redevelopment.87

Eychaner’s land was not blighted, but there was some blight in the
area, so Eychaner’s land was soon placed into a “conservation area”
because in the future it “may become a blighted area.”88 A few months
later, Blommer submitted its proposal to redevelop the area around the
factory, which included Eychaner’s land, for all of the usual reasons
that support an economic development taking: creating and retaining
jobs, increased tax revenue, and to ensure that the plant stayed in
the city.89 When Eychaner refused to sell to Blommer, down came
the city’s eminent domain hammer.90
The appellate court distinguished Southwest Illinois Development Au-
thority v. National City Environmental (SWIDA), the case in which the
Illinois Supreme Court invalidated a taking for private benefit, conclud-
ing that an A-to-B taking with “minimal public benefit” which “princi-
pally benefitted” a private party could not withstand public use scru-
tiny.91 Concluding that the taking of private property for an adjacent
racetrack’s parking lot was a “purely private benefit and lacks a showing
of a supporting legislative purpose,” the SWIDA court held that the “true
beneficiaries of this taking are private businesses and not the public.”92
The Eychaner court held SWIDA was different because they did not
have plans.93 In SWIDA, the condemnor produced no studies, and thus
the court was able to see through the pretext to the “sweetheart deal”
to understand that the taking was not intended to benefit the public.94
It did not matter whether the public was allowed to access the property
under its new ownership, because the key issue is the motive of the
condemnor. Relying on Kelo,95 the Eychaner court concluded that
the City had adequately documented that its motives were pure be-
cause it showed the taking of Eychaner’s land was just part of a
plan. A “carefully formulated” economic development plan, not a
sweetheart deal.96 Thus, the court held the taking “unquestionably

87. Eychaner, 26 N.E.3d at 513.
88. Id. at 514.
89. Id.
90. Id.
91. 768 N.E.2d 1, 10 (Ill. 2002).
92. Id.
93. Eychaner, 26 N.E.3d at 518.
94. Id.
95. Kelo v. City of New London, 545 U.S. 469 (2005).
96. Eychaner, 26 N.E.3d at 522.
Recent Developments in Eminent Domain 953

serves a public purpose of preventing blight, promoting economic re-
vitalization, and protecting existing industry.”97
The court rejected Eychaner’s pretext arguments after acknowledg-
ing that “[r]ecognizing the difference between a valid public use and a
sham can be challenging.”98 But the existence of the plans made it
much less challenging, indeed a foregone conclusion:
[A] telling feature of sound public use in the context of economic redevelopment is
the existence of a well-developed, publicly vetted, and thoughtful economic devel-
opment plan. Such a plan was present in Kelo, and Gutknecht, but absent in SWIDA
(“SWIDA did not conduct or commission a thorough study of the parking situation
at [the racetrack]. Nor did it formulate any economic plan requiring additional park-
ing at the racetrack.”). A taking will likely pass constitutional muster where done in
furtherance of a sound economic development plan, rather than the plan retroac-
tively justifying the taking.99

This was no “sham to take [Eychaner’s] property.”100 The City had an
economic revitalization plan, and the taking was but a part of it be-
cause it “aligned” with the City’s stated goals to retaining “existing
industry [Blommer], prevent[s] conflict between residential and indus-
trial use [Blommer], and promote[s] investment and revitalization
[Blommer’s] in a conservation area.”101
Having found the taking constitutional, the court did have problems
with the way the trial court handled the just compensation issue, con-
cluding that the “scope of the project” rule should have resulted in the
trial court excluding evidence of the PMD zoning.102 The court held
that the “public improvement” (the project) “is Blommer’s expanded
industrial campus, the ultimate use of Eychaner’s property.”103
The record indicates that the creation of the PMD, the River West TIF, and the tak-
ing of Eychaner’s land were all a single project. The City began the process of cre-
ating the PMD in late 1999 with the goal of protecting industrial users like Blom-
mer. The City’s study regarding the River West TIF indicated that it was a
“financial mechanism necessary to implement the goals and objectives of ” the
PMD. The taking of Eychaner’s land was not only an integral part of creating
the PMD, but also served to carry out the goals of PMD and River West TIF.
Namely, the preservation of the City’s industry, prevention of conflicts between in-
dustrial and residential uses, job creation, and increased tax revenue.104

97. Id. at 520.
98. Id. at 521.
99. Id. at 521-22 (internal citations omitted).
100. Id. at 522.
101. Id. at 523.
102. Id. at 526.
103. Id. at 525.
104. Id.
954 The Urban Lawyer Vol. 48, No. 4 Fall 2016

Note the irony in the City’s argument: the “project” for purposes of the
scope of the project rule, supposedly the property owner’s expecta-
tions of why its property was taken, was not to give it to its neighbor,
when that was exactly the City’s argument supporting its claims of
public use. The court rejected as “speculative” the City’s argument
that “Eychaner’s land would have been included in the PMD even if
it was not taken for Blommer’s expansion.”105
B. Arizona Court of Appeals: Statute Giving School
District Power to Take “Buildings and Grounds”
Implies Power to Take Roads
In Catalina Foothills Unified School District No. 16 v. La Paloma
Property Owners Ass’n, the Arizona Court of Appeals held that a stat-
utory grant of power to school districts to take property for “buildings
and grounds” also implied the power to take property to access those
buildings and grounds.106
The School District acquired La Paloma’s vacant land in a stipulated
eminent domain judgment, promising that the only access to the new
campus from an adjacent private road also owned by La Paloma
would be on foot.107 The road was used by residents of the La Paloma
subdivision for vehicular access.108 After the District built a new cam-
pus, it decided that it also needed vehicular access via that private road,
so the District condemned it, subject to La Paloma’s perpetual easement
allowing the residents of the subdivision to continue using it.109 La Pa-
loma objected, because the statute110 delegating eminent domain power
to school districts limits the delegation to takings for “buildings and
grounds” and a road is not a “building” nor “grounds.”111 The court
of appeals disagreed. Yes, the court recognized that “[a] court will
not inflate, expand, stretch or extend a statute to matters not falling
within its expressed provisions,” but this statute needed expanding
and a bit of stretching.112 The court held that the power to take buildings
and grounds necessarily implied the power to take property to access
those buildings and grounds.113

105. Id.
106. 363 P.3d 127 (Ariz. Ct. App. 2015).
107. Id. at 130.
108. Id.
109. Id.
110. ARIZ. REV. STAT. § 12-1111(3) (2016).
111. Catalina Foothills, 363 P.3d at 131.
112. Id. (quoting City of Phoenix v. Donofrio, 407 P.2d 91, 93 (Ariz. 1965)).
113. Id. at 514.
Recent Developments in Eminent Domain 955

The court also rejected La Paloma’s argument that “buildings and
grounds” does not include existing roads, and held that it does not mat-
ter what the property was being used for before the taking, only
after.114 This was an argument that the District cannot take property
to get access into or on school grounds, and it would be ridiculous
if a school district could take vacant land, but was prohibited from
using a part of that land to create a road—a point conceded by La
And what about that other part of the statute which grants the power
to take property for use as roads, but only grants that power to a
“county, city, town or village,” but not school districts?116 That provi-
sion would not allow the District to condemn land that is not con-
nected to District property. But that’s different than property that is
connected to District property. It can take those roads. The court
also disposed of other issues in the case: severance damages, voter ap-
proval of the taking, and prejudgment interest.117
C. To But Not Through: Bluegrass Pipeline Must be
PUC-Regulated for the Benefit of Kentucky
Consumers to Use Eminent Domain
The Bluegrass Pipeline is a massive private pipeline that would deliver
natural gas from the Marcellus and Utica shale formations to the Gulf
Coast.118 It is planned to run through thirteen Kentucky counties, al-
though there are no “offramps” for the natural gas actually in Ken-
tucky.119 In Bluegrass Pipeline Co. v. Kentuckians United to Restrain
Eminent Domain, the Kentucky Court of Appeals concluded that the
pipeline company did not have eminent domain power because it
was not regulated by the Public Service Commission, and therefore
was not “in public service” as required by Kentucky eminent domain

114. Id. at 515.
115. Id.
116. ARIZ. REV. STAT. § 12-1111(6) (2016).
117. Id. at 517-19.
118. Kentucky House Votes to End Eminent Domain for Bluegrass Pipeline, MAR-
CELLUS DRILLING (March 24, 2014),
119. Proposed Bluegrass Pipeline, KENTUCKIANS FOR THE COMMONWEALTH, https:// (last visited May 15, 2016).
120. Bluegrass Pipeline II, 478 S.W.3d 386 (Ky. Ct. App. 2016); See KY. REV.
STAT. ANN. § 278.502 (West 2016) (“Any corporation or partnership organized for
the purpose of . . . operating oil or gas wells or pipeline for transporting or delivering
oil or gas, including oil or gas products, in public service, may . . . condemn the land
and material or the use and occupation of the lands.”).
956 The Urban Lawyer Vol. 48, No. 4 Fall 2016

The trial court concluded that this means that a private entity like
Bluegrass must be regulated by the PSC and “in public service.”121
Even though the plain text of the statute does not limit it to PSC-
regulated entities, the trial court concluded that the legislative history
made it clear that the legislature intended it to be so, and that Blue-
grass cannot “circumvent the statutory protections for landowners to
take advantage of the right of eminent domain.”122 The court of ap-
peals agreed, holding:
[T]he legislature only intended to delegate the state’s power of eminent domain to
those pipeline companies that are, or will be, regulated by the PSC. In addition, the
NGLs in Bluegrass’s pipeline are being transported to a facility in the Gulf of
Mexico. If these NGLs are not reaching Kentucky consumers, then Bluegrass and
its pipeline cannot be said to be in the public service of Kentucky.123
A big win for those who oppose these pipelines. Will other jurisdic-
tions follow suit? Stay tuned.
D. North Carolina Court of Appeals: No Public Use
or Benefit When Town, Fueled by Improper Motive,
Condemned Private Street to Make it Public
In Town of Matthews v. Wright, the North Carolina Court of Appeals
invalidated a taking, the stated purpose of which was to make a portion
of a private road into a public street.124 A taking to open a private road
to the public? That sounds like a public use or purpose, no? And had the
court of appeals stopped there without delving deeper, and had the case
not had the history which it did, the result might have been different.
The facts that led the court to that conclusion are worth reading in
depth, but here is the summary: the homes of the Wrights and five
neighbors are located on a dead-end street, Home Place, which con-
nects to the public street system at Revedery Lane.125 Home Place
was originally a private street, but the Town believed there was an im-
plied dedication, and treated Home Place like a public street: it even
paved it.126 The Zoning Board of Adjustment concluded that it was pub-
lic.127 Litigation ensued. Lots of litigation. This entailed several trips to

121. Kentuckians United to Restrain Eminent Domain v. Bluegrass Pipeline Co.
(Bluegrass Pipeline I), No. 13-CI-1402, 2014 WL 10246980, at *7 (Ky. Cir. Ct.
Mar. 25, 2014).
122. Id. at *6.
123. Bluegrass Pipeline II, 478 S.W.3d at 392.
124. Wright IV, 771 S.E.2d 328 (N.C. Ct. App. 2015).
125. Id. at 329.
126. Id.
127. Id. at 330.
Recent Developments in Eminent Domain 957

the court of appeals.128 After that court concluded there was no implied
dedication, the Town adopted a resolution adding Home Place to the
register of public streets in 2006, “nunc pro tunc” to 1985.129 More lit-
igation. More trips to the court of appeals. Pretty much the same result
as the first time: no implied dedication by the Wrights.
Not to be deterred, the Town threw down what it thought was its
trump card: it brought its power of eminent domain to bear to take
the Wrights’ portion of the private road, and make it public.130 The
Wrights, after all, “might eventually block” the road.131 After some
amusing insider machinations,132 the Town condemned the Wrights’
interest in the road, just compensation set at $1,500.133 It took only
the Wrights’ interest and not those of their four neighbors.134
This, of course, was not the end of the fight. The Wrights argued
that the taking was invalid and not accomplished for a public use or
purpose.135 The trial judge agreed.136 Usually, a taking to make a pri-
vate street public would be fine, but here, the Town was simply trying
to accomplish what its earlier thwarted actions could not. The court of
appeals affirmed, holding that under the Fifth Amendment and the
North Carolina Constitution’s due process clause (remember, North
Carolina has no express “takings clause” in its constitution) the
Wrights met their burden of proof that the taking was not for a public
use or benefit.137 The test is conjunctive: there must be both a use and
a benefit.138 There would be a right of public use of the road, but the
public benefit was not there. The court concluded that the Town’s
stated purpose, to keep the Wrights from maybe blocking the road
in the future, did not hold up because the Wrights had never blocked
the road.139 Plus, the Town was not condemning the other four

128. See Wright v. Town of Matthews (Wright I), 627 S.E.2d 650 (N.C. Ct. App.
2006); Town of Matthews v. Wright (Wright II), 669 S.E.2d 841 (N.C. Ct. App. 2008);
Town of Matthews v. Wright (Wright III), 714 S.E.2d 867 (N.C. Ct. App. 2011);
Wright IV, 771 S.E.2d 328.
129. Wright IV, 771 S.E.2d at 330.
130. Id. at 332.
131. Id. at 331.
132. See id. at 331-32 (detailing how the mayor and commissioner attempted to
sway public opinion against the Wrights via questionable tactics).
133. Id. at 332.
134. Id.
135. Id.
136. Id.
137. Id. at 334.
138. Id. at 333.
139. Id. at 334 (“The predicate to ‘opening’ Home Place is that it must have pre-
viously been ‘closed’ in some way.”).
958 The Urban Lawyer Vol. 48, No. 4 Fall 2016

homeowners’ private rights in Home Place, which would remain pri-
vate, and “[i]t defies reason that the Town would need to condemn
only the Wrights’ portion of Home Place in order to ‘open’ the
The fact that the Town left the other four owners unmolested meant
that its other purported public benefits, allowing neighbors to access
their land, utility access, and the fire department’s access to water,
were also illusory.141 The court was also influenced by the case’s
long history, and the Town’s serial failed efforts to make the road
The sequence of events leading up to the condemnation bolsters our conclusion that
no public use or benefit is served by the condemnation. The evidence shows that the
Town was motivated by considerations irrelevant to the public benefit. The evi-
dence shows that Mayor Taylor and some of the Commissioners considered per-
sonal conflicts between the Town and the Wrights in making the decision to
condemn—rather than considering the public use or benefit of the condemnation.142
Has the Town finally received the Wrights’ message?
E. New York Appellate Division: Taking Invalidated
Because Town Segmented Environmental Review
A typically short and cryptic one from the New York Supreme Court,
Appellate Division. In J. Owens Building Co. v. Town of Clarkstown,
the court concluded the town improperly divided up its downtown re-
vitalization project into too many pieces before determining that it
would not have an environmental impact.143 The court held that the
town should not have looked only at the drainage and storm water
management part of that plan, but should have considered it as part
of the larger project.144 Consequently, the condemnation was invalid.
A good reminder that there is more than one way to do it when it
comes to challenging the power to take and that attorneys are not lim-
ited to traditional “public use/purpose” theories.

140. Id.
141. Id. (“Rather, condemnation of the Wrights’ portion of Home Place would only
allow for those public benefits on the Wrights’oportion of Home Place, which is at a
dead end and landlocked by other individuals’oportions of Home Place.”).
142. Id.
143. 10 N.Y.S.3d 293, 295 (N.Y. App. Div. 2015).
144. Id.
Recent Developments in Eminent Domain 959

F. California Court of Appeals: Municipality Free to
Form Community Facilities District to Take Over
Water Utility
The first sign that this opinion was not going the way of the Golden
State Water Company, a private utility that provides water to the
City of Ojai, California, was right there in the first paragraphs,
which contain the one-two punch of labeling the company both a mo-
nopolist and one that price gouges California’s most sensitive subject
these days: water.145
The opinion is infused with the flavor that Golden State positively
deserved to have its property taken by eminent domain:
Monopolists have long been unpopular in this country. When King George III’s
choke hold on government led to intolerable levels of taxation, he was forced to di-
vest his holdings. At the end of the nineteenth century, Congress passed the Sher-
man Antitrust Act with only a single dissenting vote. (26 Stat. 209, as amended,
15 U.S.C. §§ 1-7.) Introducing his landmark bill, Senator Sherman summed up
the prevailing sentiment: “If we will not endure a king as a political power we
should not endure a king over the production, transportation, and sale of any of
the necessaries of life.” (21 Cong. Rec. 2457 (1890).) Nothing is more necessary
to life than water. Residents of Ojai, fed up with sky high water bills, voted to
oust appellant Golden State Water Company (Golden State), the private utility
that monopolizes water service to their city, and replace it with respondent Casitas
Municipal Water District (Casitas), a municipal utility that they hope will be more
responsive to their concerns. They plan to finance this transaction by selling bonds
pursuant to the Mello-Roos Community Facilities Act of 1982.146
From that inauspicious piece of judicial advocacy, the opinion goes on
to analyze the issue of whether California’s “Mello-Roos” statute,
which enables “Communities Facilities Districts” (special taxation dis-
tricts) to be formed by local governments to set up funding for public
works and public service projects, prohibited the voters of Ojai from
forming such a district to pay the just compensation for the taking
of Golden State’s rights for transfer to the Casitas Municipal Water

145. Golden State Water Co. v. Casitas Mun. Water Dist., No. B255408, slip op. at
1-2 (Cal. Ct. App. April 14, 2015), opinion amended and superseded, 186 Cal. Rptr.
3d 64, 66 (Cal. Ct. App. 2015).
146. Id.
147. Id. at 5-6. Professor Shaun Martin, who pens the California Appellate Report
blog wrote: “[i]t’s almost as though [the justice who authored the opinion] believes
respondents’lposition even more than they do . . . [a]nd Justice Perren seems affirma-
tively enthusiastic about it.” Shaun Martin, Golden State Water Co. v. Casitas Munic-
ipal Water Dist. (Cal. Ct. App. - April 14, 2015), CAL. APP. REPORT, (April 14, 2015),
960 The Urban Lawyer Vol. 48, No. 4 Fall 2016

The court’s short answer: no.148 The statute allows funding for “pur-
chases,” and eminent domain qualifies even if it is not a voluntary
G. Iowa: “Liberty Requires Accountability”—
Delegation of Eminent Domain Power Strictly
Construed, and Commission With Private
Members Could Not Take Property
In Clarke County Reservoir Commission v. Robins, the Iowa Supreme
Court held that the Commission did not have the power of eminent do-
main because several of its members were private actors.150 The court
also concluded that the post-judgment withdrawal of those members
did not moot the property owner’s appeal.151
Property owners are entitled to strict compliance with legal requirements when a
government entity wields the power of eminent domain. These legal requirements
help protect against abuse of the eminent domain power. We strictly construe stat-
utes delegating the power of eminent domain and note the absence of a clear leg-
islative authorization for a joint public-private entity to condemn private property.
For the reasons elaborated below, we hold a 28E commission with members lacking
the power of eminent domain cannot itself exercise the power of eminent domain or
serve as an acquiring agency seeking a declaratory judgment under section 6A.24(2).
We determine the postjudgment withdrawal of the private members did not render this
appeal moot because the district court erred by entering judgment in favor of an im-
proper acquiring agency.152
“Liberty requires accountability,” noted the court, and “[a] contrary
holding would effectively enable private entities to exercise eminent
domain powers through a 28E entity. Private entities are not account-
able to voters.”153 The court sent the case back to the trial court, one
justice dissented because he found the remand unnecessary and would
have simply entered judgment for the property owner, making the

148. Golden State, slip op. at 7-8.
149. Id. at 8 (“The Mello-Roos Act . . . authorizes a public agency to ‘purchase’
real property in order to construct and develop government facilities. Given the obvi-
ous practical need in certain circumstances of using eminent domain power to acquire
property for this purpose, the word ‘purchase’ should be construed in its broadest
sense, which includes a taking by eminent domain in exchange for just compensa-
tion.”). For more details on the case, see Brad Kuhn & Rick Rayl, Mello-Roos May
be Used to Fund Condemnation Action of Private Utility Provider, LEXOLOGY,
(April 17, 2015),
150. 862 N.W.2d 166, 168 (Iowa 2015).
151. Id.
152. Id.
153. Id. at 176 (internal quotations and citations omitted).
Recent Developments in Eminent Domain 961

Commission start over again—this time with no private members.154
A good case and one worth reading.
H. New Jersey: When Designating Blight, Baby can
be Tossed Without First Showing the Bathwater’s Dirty
A few years ago, in Gallenthin Realty Development v. Borough of
Paulsboro, the New Jersey Supreme Court held that in order to target
property for redevelopment as “blighted,” the Government must show
that it is in such condition that it “negatively affects surrounding
areas” by promoting conditions that can develop into blight.155 In
that case, the targeted property was mostly undeveloped wetlands,
and the “blight” of which it stood accused was the owner’s failure
to put it to a more intensive economic use.156 But that was not suffi-
cient to support a blight finding, and the court held that the govern-
ment must have done more than simply recited the standards for blight
redevelopment and declare they were met.157
In 62-64 Main Street LLC v. Mayor & Council of Hackensack, the
New Jersey Supreme Court revisited the issue.158 Instead of a com-
plete write up of this case, this Article will refer to a post by Anthony
Della Pelle, at the New Jersey Condemnation Law blog, who, in “Will
the Latest New Jersey Supreme Court Property Rights Decision Revive
the Redevelopment Market?” writes:
Last week, a divided New Jersey Supreme Court ruled that condemning agencies do
not have to prove that properties within an area “in need of redevelopment” have a
deleterious effect on the surrounding area in order for those properties to be taken
via eminent domain. The 3-2 majority opinion, authored by Justice Barry Albin,
concluded that, so long as there is substantial evidence in the record that the legis-
lative definitions set forth in New Jersey’s Local Redevelopment and Housing Law
(“LHRL”) are met, a court is bound to affirm a local government’s redevelopment
designation. The decision has stirred debate in the legal community as to whether
the criteria for condemning property for redevelopment purposes has been eased,
and whether it represents a departure from the Court’s landmark 2007 decision in
Gallenthin Realty Development, Inc. v Borough of Paulsboro, 191 N.J. 344
(2007). One big difference between this latest case and Gallenthin was that here,
the properties declared blighted were actually “boarded up” and displayed “prom-
inent signs of structural deterioration,” and not simply economically underutilized.
Moreover, according to the dissenting Chief Justice, the surrounding area is a
“thriving, commercial area that is home to a newly built CVS, Auto Zone and
branch of TD Bank.” Slip op. at 37. So it seems that this is the reverse of the classic
Berman situation, where the court held it was okay to blight the baby (well-

154. Id. at 178-79 (Wiggins, J., dissenting).
155. 924 A.2d 447, 457 (N.J. 2007).
156. Id. at 449-50.
157. Id. at 456.
158. 110 A.3d 877 (N.J. 2015).
962 The Urban Lawyer Vol. 48, No. 4 Fall 2016

maintained property) if the legislature says the bathwater (the surrounding area) was
dirty. The Hackensack majority, however, based its decision in the fact that the
blight designation in Gallenthin was based on the criteria in subsection (e) of
New Jersey’s Blighted Areas statute (the property negatively affects other areas),
while Hackensack’s designation was based on subsections (a), (b), and (d)
(which relate to the conditions of the property itself ).159

The dissenting Chief Justice did not think so and wrote:
Today, the majority takes a step backward from Gallenthin. In assessing different sec-
tions of the same law, N.J.S.A. 40A:12A-5(a), (b), and (d), the majority concludes that
when the government designates an area to be “in need of redevelopment”—a critical
step in the takings process—it need not affirmatively prove both elements set forth in
Gallenthin to show that a property is “blighted.” Instead, the majority permits the des-
ignation of private land for redevelopment even when government officials have not
shown a decadent effect on surrounding properties.160

I. Minnesota Supreme Court Orders Power Company
To Buy The Farm—Literally
When one hears the phrase “buy the farm,” he or she thinks of the cli-
che from the old war movies, not eminent domain. But in Minnesota,
“buy the farm” is taken literally. In Great River Energy v. Swedzinski,
the Minnesota Supreme Court interpreted that state’s “buy the farm”
statute, which gives certain landowners the option to require a public
utility taking an energy corridor easement to buy their entire parcel, if
certain conditions set out in the statute are met.161
To be accurate, the court was not “interpreting” the statute. It was
reviewing the lower courts’ refusal to graft a reasonableness require-
ment into the statute as Great River, a utility with the power of emi-
nent domain under the statute, had requested following its condemning
of a permanent easement and a temporary access easement across
Swedzinski’s land, prompting Swedzinski to exercised the option re-
quiring Great River to buy the entire farm.162
Great River argued that even though Swedzinski’s election qualified
under the factors laid out in the statute, it should not have been forced
to buy more than was reasonable. It asserted that “the land subject
to the election was so much larger than the land needed for the

159. Anthony Della Pelle, Will the Latest New Jersey Supreme Court Property
Rights Decision Revive the Redevelopment Market?, N.J. CONDEMNATION L. BLOG,
court-proeprty-rights-decision-revive-the-redevelopment-market/ (providing more
details and links for further analysis).
160. 62-64 Main St., LLC, 110 A.3d at 898.
161. 860 N.W.2d 362 (Minn. 2015); MINN. STAT. S 216E.12.4 (2016).
162. Id. at 366-67.
Recent Developments in Eminent Domain 963

easement.”163 It argued that in addition to the factors spelled out ex-
pressly in the statute, wholly owned, undivided fee simple interest
and timely notice, the land at issue in the election must be contiguous
with the condemned parcel and “commercially viable”: there is an
implied requirement of reasonableness under the totality of the
Both the trial court and the court of appeals rejected the argument,
as did the Minnesota Supreme Court, reasoning that the legislature
spelled out certain factors, and those are all the factors.165 Although
in two earlier Minnesota Supreme Court decisions interpreting an ear-
lier iteration of the “buy the farm” statute, the court had required that
certain conditions be “reasonable,” in Great River it held that the leg-
islature’s subsequent amendment of the statute had incorporated these
cases’ reasonableness requirements and thus it was not a separate
overall requirement under the current version of the statute.166
The court recognized that it might make sense from a policy standpoint
to have an overall requirement of reasonableness, but it is known that
where policy arguments get one most of the time in Supreme Court argu-
ments are directions to the legislature.167 It was no different here.
J. Second Circuit Court of Appeals: Amtrak Statute of
Limitations on Claim Property is Immune from
NY’s Eminent Domain Power
The State of New York wants to build the Bronx River Greenway, a
“23-mile-long ribbon of green with a multi-use path that will extend
along the full length of the river in Westchester County and the
Bronx.”168 Who could argue with that? Amtrak, that’s who. After fail-
ing to acquire six parcels along the river owned by the “private corpo-
ration created by the Rail Passenger Service Act of 1970, 49 U.S.C.
§ 24101” in 2008, the State filed notices of appropriation and maps
with the county clerk, and title to the land vested in the State.169
They kept trying to work things out but to no avail, and, in 2012,

163. Id. at 365.
164. Id.
165. Id. at 367.
166. Id.
167. See id. at 367-68 (“The policy arguments that Great River advances in support
of its theory that the statute should contain additional requirements are properly di-
rected to the Legislature.”).
168. Greenway Facts, BRONX RIVER ALL.,
(last visited May 18, 2015).
169. Nat’l R.R. Passenger Corp. v. McDonald, 779 F.3d 97, 99 (2d Cir. 2015).
964 The Urban Lawyer Vol. 48, No. 4 Fall 2016

Amtrak sued in federal court, arguing that the takings were invalid
under the Supremacy Clause because they were expressly or impliedly
preempted by federal law.170
In National Railroad, the Second Circuit never reached the merits
of Amtrak’s preemption claim, concluding instead that Amtrak waited
too long to raise it.171 The court applied New York’s six-year statute
of limitations and detailed the series of events that convinced the court
that Amtrak knew or should have known about the injury:
We do not pause to determine the precise date on which [New York State Depart-
ment of Transportation] knew, or had reason to know, because both possible dates
are well beyond six years from the date this action was brought. In 2005, when
Weld sent the email informing Amtrak that NYSDOT would hold a May 2005 pub-
lic hearing on the subject of condemning Amtrak’s land, Amtrak arguably had rea-
son to know of the alleged Supremacy Clause violation that is the basis of its pres-
ent claim. Eminent domain proceedings cloud title, and Amtrak concedes that it
suffered not merely potential, but actual injury once its property became the subject
of EDPL proceedings. At the very latest, Amtrak had notice of this harm in August
2005, when NYSDOT announced its findings.172
But the takings actually did not take place until 2008, and since Am-
trak sued in 2012, wasn’wastis okay? The court held no, stating:
[T]he completion of the takings was merely the final act of the intrusion on Am-
trak’s alleged Supremacy Clause rights that accrued in 2005 at the outset of the con-
demnation proceedings. It would make no sense to begin the limitations period—or
restart it—when title to the real estate actually vests in the state, an act that occurs
only after notice to interested parties and the requisite findings have been made. In-
deed, Amtrak’s proposed rule would leave the validity of a condemnation of its
property in doubt for some six years after title has passed. Common sense, not to
mention the record of Amtrak’s failure to take any of the obvious protective mea-
sures, directs otherwise.173
In other words, do not wait for the final hammer to fall before formally
objecting. Attorneys who practice in this area are not sure they agree
with the court’s analysis because before the 2008 notices of appropri-
ation, filing of the maps, and vesting of the title in the State, nothing
was written in stone; it even appeared that there was some chance the
State and Amtrak would reach an agreement. Common sense says that
it would have tainted the negotiations were Amtrak to have thrown
down a lawsuit at that point, and perhaps the reasons it did not file
then was not that it was idly sitting on its rights, but rather (1) its prop-
erty was still its property because the State had not taken the final act

170. Id. at 99-100.
171. Id. at 100.
172. Id. at 101.
173. Id. at 102.
Recent Developments in Eminent Domain 965

to vest title and (2) it hoped that the ongoing negotiations might be
successfully concluded short of a taking.
But the Second Circuit thought otherwise, so the prudent course is
to file early and perhaps often. Landowners in these situations are put
in a tough spot because, invariably, if they do file suit as the Second
Circuit requires, either for inverse condemnation or to stop a taking,
the condemnor will argue that the case is not ripe.
K. Texas Court of Appeals: Trial Court Cannot
Determine Power to Take Until After
Commissioners Determine Value
Texas has bifurcated its eminent domain process. After a petition in
condemnation is filed in court in the “administrative” phase, the
court appoints commissioners to hold a hearing and render an opinion
on value.174 If any party does not like commissioners’ decision, the
“judicial” phase commences and the more familiar process begins.175
In In re Tarrant Regional Water District, the question was if in the
administrative phase the court has the obligation to appoint commis-
sioners even where the court might agree with the property owner’s
contention that its property was immune from condemnation.176 The
trial court refused to appoint commissioners, holding it would only
do so after a hearing on whether the condemnor could legally take
the property.177
The court of appeals granted the condemnor’s petition for a writ of
mandamus and held that during the administrative phase of an eminent
domain case, the trial court has no power to avoid appointing commis-
sioners.178 It ordered the trial court to appoint the commissioners. The
court of appeals concluded that during the administrative phase, the
only duty or power of the trial court is to appoint commissioners.179 It
can not make any determination about the power to take. Even, appar-
ently, in cases like this where the property owner may have a good
claim that the taking should not even be occurring. The court of appeal
shrugged off the argument that the condemnor lacked authority to take
and held it is not a judicial problem—at least not yet. So appoint the

174. In re Tarrant Reg’l Water Dist., No. 12-14-00329, 2015 WL 545783, at *1-2
(Tex. App. Feb. 11, 2015).
175. See, e.g., In re Lazy WDist. No. 1, 2016 Tex. LEXIS 410 (Tex. May 27, 2016)
(detailing procedure in Tex. Prop. Code s 21.014).
176. Id. at *3.
177. Id. at *2.
178. Id.
179. Id.
966 The Urban Lawyer Vol. 48, No. 4 Fall 2016

commissioners and let them have their hearing, and then if a party objects
have a hearing on value. And only then does the trial court have jurisdic-
tion to determine whether the condemnor can take the property.180
That does not seem very efficient, nor does it square with the under-
standing that courts are not just potted plants when it comes to cases
that are on their docket, that they always having some kind of power to
control them.
M. Texas Court of Appeals: Pipeline Isn’t a Common
Carrier with Power of Eminent Domain Just
Because Post-Taking It Might Transport Others’
This one has been to the Texas Supreme Court before, where the court
required trial courts to make an actual, factual inquiry into a claim that
a pipeline company is a common carrier with the power of eminent
domain, and not just accept the fact that the company registered as
a common carrier as conclusive.181 The court sent the case back
down, but the trial court concluded that the pipeline operator was a
common carrier because after the pipeline’s construction, the operator
had the intent to move some carbon-dioxide belonging to another en-
tity through the pipeline.182 It granted the pipeline company summary
judgment on the common carrier issue.
In Texas Rice Land Partners, the court of appeals disagreed after ap-
plying the test set out in the Texas Supreme Court’s decision and con-
cluded that reasonable minds could differ about whether the pipeline op-
erator is or is not a “common carrier” as defined in Texas statutes.183
Under Texas law, a “common carrier” is defined as an entity that:
[O]wns, operates, or manages, wholly or partially, pipelines for the transportation of
carbon dioxide or hydrogen in whatever form to or for the public for hire, but only if
such person files with the commission a written acceptance of the provisions of this
chapter expressly agreeing that, in consideration of the rights acquired, it becomes a
common carrier subject to the duties and obligations conferred or imposed by this

180. See id.
181. See Tex. Rice Land Partners v. Denbury Green Pipeline-Tex., LLC (Tex. Rice I),
363 S.W.3d 192 (Tex. 2012).
182. Tex. Rice Land Partners v. Denbury Green Pipeline-Tex., LLC (Tex. Rice II),
457 S.W.3d 115, 117 (Tex. App. 2015), cert. granted, No. 15-0225 (Tex. 2016).
183. Id. at 120-21.
184. TEX. NAT. RES. CODE ANN. § 111.002(6) (West 2016).
Recent Developments in Eminent Domain 967

In order to qualify under the Texas Supreme Court’s fact-based test,
the entity must have the intent to be a common carrier at the time
of its plans to construct the pipeline. The court of appeals focused
on this language from the Supreme Court’s opinion:
[F]or a person intending to build a [carbon-dioxide] pipeline to qualify as a common
carrier under Section 111.002(6), a reasonable probability must exist that the pipe-
line will at some point after construction serve the public by transporting gas for one
or more customers who will either retain ownership of their gas or sell it to parties
other than the carrier.185

It did not matter that after construction, the entity produced evidence
that showed the gas of others would be transported:
The record demonstrates that the Green Line was first contemplated in 2008, but
Airgas did not approach Denbury Green about transporting carbon dioxide until
after the Green Line was completed. Tellingly, when Airgas raised the issue in
an email sent after the Texas Supreme Court’s ruling, Airgas stated, “Given the re-
cent ruling about your pipeline, I thought it might be advantageous for you to have
another company transport some CO2 down this line.” As the Texas Supreme Court
has noted, the professed use must be a public use in truth. We cannot say that the
Airgas contract, reached after the Green Line’s completion, speaks to Denbury
Green’s intent at the time of its plan to construct the Green Line.186

This makes sense because the power of a private entity to take prop-
erty as a common carrier should be determined by its intent at the time
of the taking, not whether after acquisition it can devote the property
taken to public use.
Because the common carrier issue turned on issues of fact (the en-
tity’s intent) about which reasonable persons could differ, the court
concluded that summary judgment was not warranted. The court
sent the case back down to the trial court. It has since been stayed
as the Texas Supreme Court has granted cert.
N. Washington: State Trust Land Can Be Condemned
by County Utility
Here’s one with a somewhat unusual twist: the condemnee objecting
to the taking by a public utility district was the State. In Public Utility
District No. 1 of Okanogan County. v. State, the Washington Supreme
Court affirmed the power of the county utility district to take an ease-
ment over “school trust lands” for the construction of an high-voltage,
high-capacity transmission line and corridor.187 The land was owned
by the public and held in trust for schools, was “a portion of the largest

185. Tex. Rice II, 457 S.W.3d at 120 (quoting Tex. Rice I, 363 S.W.3d at 202).
186. Tex. Rice II, 457 S.W.3d at 120 (internal citations omitted).
187. 342 P.3d 308 (Wash. 2015).
968 The Urban Lawyer Vol. 48, No. 4 Fall 2016

publicly owned tract of shrub-steppe habitat in the Methow Valley,”
and was being used for cattle grazing.188 The grazing leases generated
$3,000 per year for the state’s public schools, and also acknowledged
that the land may be subject to easements and condemnation.189
The court first concluded that an environmental organization could
intervene to address the power of the utility district to take the land.190
Although not an adjoining landowner (that, under prior decisions,
would have standing to intervene by challenging the power to take),
the interest of the environmental organization was like that of an ad-
joining landowner, and the State might not adequately protect that in-
terest: the State was there to protect the lands as school lands, while
the organization’s interest was in protecting “wildlife sanctuaries
and shrub steppe lands.”191 Thus, the trial court did not abuse its dis-
cretion when it allowed the environmental organization to intervene to
challenge the power to take.
On the other issue, however, the court sided with the utility-con-
demnor, and held that the state land was not immune from being
taken.192 The utility has been delegated the power of eminent domain
by statute, so the court viewed this issue as the scope of the delegation
to a municipal corporation under the statute, which provides:
A district may take, condemn and purchase, purchase and acquire any public and
private property, franchises and property rights, including state, county, and school
lands, and property and littoral and water rights, for any of the purposes aforesaid,
and for railroads, tunnels, pipe lines, aqueducts, transmission lines, and all other fa-
cilities necessary or convenient.193

The State asserted that as trust land, its property was exempt and that
transfer of the land would violate its fiduciary duties.194 When the
State owns land in its “proprietary” capacity, it’s enough that the en-
abling statute authorizes confers the power to take this type of land.195
By contrast, when the State owns land it its “governmental” capacity”
(in trust), it can only be condemned when the statute authorizes con-
demnation of the land in that specific capacity.196 The court agreed
with the State that it “indisputably” held the school lands in its trust

188. Id. at 311.
189. Id.
190. Id. at 312.
191. Id. at 314-15.
192. Id. at 316.
193. WASH. REV. CODE §a54.16.050 (2016).
194. Okanogan Cty., 342 P.3d at 321.
195. Id. at 316.
196. Id.
Recent Developments in Eminent Domain 969

capacity, meaning the question was “whether [the utility] is expressly
authorized to condemn the subject school lands turns on whether the
term ‘school lands’ provided in [WASH. REV. CODE §] 54.16.050 refers
to school trust land.”197
One may go through the court’s statutory analysis, but in short, the
opinion concluded that “school lands” in the statute includes school
trust lands: the legislature directed the courts to “liberally” construe
the statute, and other, similar grants of power include the condemna-
tion of trust lands.198
As for the State’s prior public use argument (that the land was al-
ready being used to graze cattle) the court held that the utility’s pro-
posed use was not incompatible with the state’s use, and therefore
the doctrine did not prohibit the taking.199 The court also rejected
the State’s constitutional argument:
[The utility]’s condemnation of a right of way through school lands is consistent
with these constitutional provisions because condemnation of an easement does
not involve the sale of land in fee and requires payment of full market value.
The plain language of section 2 [of the Washington Constitution], when contrasted
with that of section 1, strongly indicates that the drafters did not intend the sale of
lesser land interests (e.g., easements) be subject to the public auction requirements
of section 2. Had they so intended, they would have included similar “estate or in-
terest” language in section 2 as appears in section 1. Because [the utility] is not at-
tempting to condemn a fee interest, we need not consider whether the public auction
requirements of section 2 would prohibit condemnation of a fee interest.200

Finally, the court rejected the state’s argument that condemnation of
school trust lands violated the State’s fiduciary duties as trustee.201
The fact that condemnation requires the payment of just compensation
was not incompatible with the State constitution’s prohibition on dis-
posal of trust land, because that limitation is subject to the proviso that
“unless the full market value of the estate or interest disposed of ” is
paid to the State.202

197. Id. at 317.
198. See id.
199. Id. at 318.
200. Id. at 321.
201. Id.
202. Id.
970 The Urban Lawyer Vol. 48, No. 4 Fall 2016

III. Just Compensation and Damages
A. Texas Supreme Court Clarifies Just Compensation
for Billboards
In State v. Clear Channel Outdoor, Inc.,203 a case which involves the
issue of whether the state DOT took a billboard when it ordered it re-
moved during a road widening project, and if so, how it should be val-
ued, the Texas Supreme Court held:
[W]e conclude that a billboard may be a fixture to be valued with the land, and that
while the advertising business income generated by a billboard should be reflected
in the valuation of the land at its highest and best use, the loss of the business is
not compensable and cannot be used to determine the value of the billboard

The court rejected the State’s contention that the billboards were
moveable, and therefore personal property and not “fixtures,” which
are generally compensable in eminent domain. That means the State
must pay for the billboards.
But that was not the end of the analysis. The court rejected the bill-
board owner’s argument that it was entitled to compensation for the
business losses which it incurred because it would have to move
the billboard or (more accurately) build a new billboard elsewhere.
Clear Channel argued that the value of the billboards should be
based on the profits generated by their use in advertising.205 The
court relied on the undivided fee rule to conclude that income gener-
ated by a business on taken property is not compensable:
Valuing the billboards separately from the land cannot afford Clear Channel com-
pensation for lost business income that could not be recovered [under Texas law].
Clear Channel argues that capitalizing income from the use of property, as its expert
did, is an accepted way of valuing income-producing property. While that is true,
the property its expert valued—the billboard advertising operations—was not the
property taken.206

The opinion concluded on this note:
Only the billboard structures themselves were excluded from the settlement, and the
compensation due for them can be based only on their cost—$25,000 per sign in the
State’s view, $15,000 per sign in Clear Channel’s. Clear Channel is not entitled to
value the structures based on the income from its advertising operations, and evi-
dence of that income was inadmissible. Its admission clearly resulted in an errone-
ous verdict.207

203. 463 S.W.3d 488 (Tex. 2015).
204. Id. at 490.
205. Id. at 496.
206. Id. at 497.
207. Id. at 498.
Recent Developments in Eminent Domain 971

B. Federal Circuit: “Before” Condition Must
Account for Railroad Junk That Would Have Been
Left Behind
Rasmuson v. United States comes out of a rails-to-trails case, but has
wider applicability.208 The case involved the usual: plaintiffs owned
lands over which the railroad had rights of way, and when the railroad
ceased operating the Surface Transportation Board issued a Notice of
Interim Trail Use, the owners’ takings claim ripened because under
Iowa law the land otherwise would have reverted back to the owners
(but for the NITU).209
In the valuation trial, the Court of Federal Claims (CFC) applied the
“before and after” method, and concluded that the “before” condition
of the land was as it existed before the trails easements, but that the
appraisers should “ignore any physical remnants of the railway’s
use, which would have remained if the railway easement had been per-
mitted to lapse.”210 The Government appealed.
It argued that the appraisers should have considered the land in its
“before” condition (as the railway left it, with the railroad’s junk left
behind), and not under the “counterfactual assumption” that the land
would revert to the owners with all that stuff gone.211 The CFC con-
cluded that in the absence of the NITU, the railroad “did not have an
obligation to remove the physical railroad construction features” and
that the owners would be stuck with it if the land was not going to
be used for a trail.212
The Federal Circuit concluded that “[a] proper appraisal methodol-
ogy has to account for those physical conditions . . . [t]hus, a ‘before’
calculation that does not take into account the costs of removing the
physical remnants of the railway will result in an artificially inflated
value and yield a windfall to the landowner.”213 The court vacated de-
cision and remanded back to the lower court.214

208. 807 F.3d 1343 (Fed. Cir. 2015).
209. Id. at 1344-45.
210. Id. at 1345.
211. Id.
212. Id.
213. Id. at 1346.
214. Id.
972 The Urban Lawyer Vol. 48, No. 4 Fall 2016

IV. Is It A Taking?
A. Federal Court: Virginia’s Entry Statute Not
Facially Unconstitutional
The issue in Klemic v. Dominion Transmission, Inc., was whether a
Virginia statute, which “authorizes a natural gas company to enter pri-
vate property without the landowner’s written permission and perform
a survey for a proposed natural gas pipeline” was a facial violation of
the United States and Virginia constitutions, “thus void and unenforce-
able.”215 The court granted the gas company’s motion to dismiss, con-
cluding that the facial challenge failed because the property owners do
not possess a right to exclude entries for purposes of surveying in an-
ticipation of an exercise of eminent domain.216 It also concluded that
an as-applied challenge was not ripe.217
This is similar to, but not the same as, the issue now being consid-
ered by the California Supreme Court in Property Reserve, Inc. v. De-
partment of Water Resources.218 In that case, also an as-applied chal-
lenge, the entries which the Department of Water Resources proposed
to undertake were not minor and innocuous; but instead they were
major, and, as the court of appeal concluded, were well beyond the
minor intrusions allowed by California’s entry statute.219 The court
of appeal concluded the proposed entries rose to the level of takings,
meaning that if the Department of Water wanted to undertake them, it
would have to exercise its eminent domain power to do so.220
Klemic is a different case, as evidenced by the District Court of the
Western District of Virginia’s ruling that the as-applied challenge was
not ripe because the gas companies “have not entered plaintiffs’ prop-
erties, and they have no intention of doing so now, given the change to
the proposed route of the pipeline.”221 That being so, there was no way
to tell whether the gas company’s proposed entries went too far. The
court merely held that Virginia’s statute was not unconstitutional in all
cases, something that should not be surprising given the number of
similar statutes around the country, and the low level of interference

215. No. 00041, 2015 WL 5772220, at *1 (W.D. Va. Sept. 30, 2015), appeal filed,
No. 15-2338 (4th Cir. Oct. 30, 2015).
216. Id. at *9.
217. Id. at *21.
218. 168 Cal. Rptr. 3d 869 (Cal. Ct. App. 2014), appeal docketed, 326 P.3d 976
(Cal. May 3, 2016).
219. Id. at 875-76.
220. Id at 899.
221. 2015 WL 5772220, at *7.
Recent Developments in Eminent Domain 973

with a landowner’s rights that they allow.222 It’s when the entry al-
lowed by the statute is used for intrusive entry that there is constitu-
tional trouble.223
It is presumed that were a Virginia gas company to propose to make
entries that exceed what is contemplated in the statute or otherwise in-
terfere with an owners’ property rights in a concrete way, such actions
well could be a taking, subject to the same rules recognized by the
California Court of Appeal. The court in Klemic did not foreclose
this, but merely told the owners to come back when you are subject
to actual, rather than hypothetical, entry by the gas companies. That
may not happen with these plaintiffs because it appears that the gas
companies are looking at other parcels. And maybe this was the
goal all along.
B. Federal Court: City Stopped Blowing Hot and
Cold and had Exclusive Possession of Property
Under Quick-Take Statute, so it was OK to Seize
Anti-Eminent Domain Sign
James v. City & County of Honolulu is a case regarding a vacant parcel
of property on the rural north shore of Oahu, which the City and
County of Honolulu is condemning in order to build a new fire sta-
tion.224 The City has not moved on building the station and has not
included money in the budget to do so.225 There is even some question
about whether this is a good place for a fire station.226
All this caused the property owner to erect several protest signs on
the parcel.227 An additional issue arose when the City removed and
stored the signs, which caused the owner to sue the City in federal
court, alleging among other things, due process and First and Fourth
Amendment violations and violations of the City’s “stored property”
In the first case between the parties, the court denied the City’s mo-
tion for summary judgment.229 The City argued the writ of immediate

222. Id. at *12.
223. Id. at *14.
224. James I, No. 13-00397, 2014 WL 4181461, at *1 (D. Haw. Aug. 20, 2014).
225. Id. at *2.
226. See Choon James, Honolulu City Hall: Where is the Common Sense and
Aloha?, H UFFINGTON P OST : T HE B LOG ( June 2, 2014, 10:55 AM), http://www.
227. James I, 2014 WL 4181461, at *2.
228. Id. at *4.
229. Id. at *8.
974 The Urban Lawyer Vol. 48, No. 4 Fall 2016

possession which it obtained in the state court condemnation proceed-
ings effectively transformed the parcel into City property and gave the
City exclusive possession of the land.230 Since the City possessed the
property, it argued, it was not in the wrong when it removed the pro-
test signs from its own land.231
The federal court rejected the argument in part, holding that the Ha-
waii eminent domain statute232 which allows governmental condem-
nors to obtain immediate possession of property, does not mean that
the property subject to condemnation is publicly-owned once a writ
is issued.233 Nor does it give the condemnor exclusive possession as
a matter of law, merely the ability “to do such work thereon as may
be required for the purpose for which the taking of the property is
And because there were questions of whether the City had acted like
it was in exclusive possession (the City continued sent the owner prop-
erty tax bills and cited her for failing to keep the property free of
weeds) the court concluded there were issues of fact still unresolved
about whether the City had taken full advantage of what the statute al-
lows, and actually exercised exclusive possession.235 Therefore, the
Court did not grant the City’s motion for summary judgment.236
That case eventually settled for $21.237
The court’s rationale appeared to be the right call in this situation.
Yes, the statute could give a condemnor exclusive possession, pro-
vided that it is required for the purpose for which “the taking of the
property is sought.” But here, the City blew hot and cold, not acting
like it had exclusive possession: it dinged the owner for letting the par-
cel get overgrown yet it collected property taxes from them.238
The court’s ruling was a good reminder to Hawaii’s condemning
agencies that they need to adhere to the limitations in the eminent do-
main statutes and cannot act outside the strict confines of what the law
allows. Even though Hawaii’s statute allowing immediate possession
is commonly referred to as a “quick-take” rule, in actuality it is not

230. Id. at *5-6.
231. Id. at *5.
232. HAW. REV. STAT. § 101-29 (2016).
233. James I, 2014 WL 4181461, at *5.
234. Id.
235. James I, 2014 WL 4181461, at *8.
236. Id.
237. James v. City & Cty. of Honolulu (James II), 125 F. Supp. 3d 1080, 1088
(D. Haw. 2015).
238. James I, 2014 WL 4181461, at *2.
Recent Developments in Eminent Domain 975

a true quick-take statute. True quick-take statutes immediately transfer
ownership and title to the condemnor.239 By contrast, Hawaii law
holds off on title and ownership transfer until there has been a judg-
ment of condemnation. It merely transfers the right of possession, as
noted in the language quoted above.
At the very least, the ruling is a reminder that agencies cannot take
inconsistent and contradictory positions, arguing on one hand that the
statute granted exclusive possession, yet on the other doing things in-
consistent with that posture. But because eminent domain is such a po-
tent power, condemning agencies often behave as if they have carte
blanche and can take what they want, the rights of the property owners
be damned. And because they are going to win in the end and get the
property, owners have no business insisting that their rights be re-
spected. But the requirements of the statutes are not mere details
that do not need to be scrupulously followed.
Now, here is chapter two of the saga. After the owners filed the first
federal lawsuit, the City sent a notice that it was exercising exclusive
possession, issued tax reimbursement checks, and informed Reynolds
(a recycling business that had been on the land) that it could not op-
erate there.240 Pretty much everything it failed to do the first time.
The property owner put up several more signs, which the City, after
notice, removed.241 The City rented the abutting property, which it
now owned, to Reynolds.242 The property owner brought another
suit in federal court, which “largely recycle[d] her Complaint from
[James I], but also includes additional allegations regarding an Octo-
ber 18, 2013 seizure of signs and the City’s alleged interference with
[her] contract with Reynolds Recycling Inc. (“Reynolds”), who was
leasing the subject property from [her].”243
The court granted the City summary judgment on all federal
claims.244 The difference between now and before is that the City ef-
fectively rectified its ambiguous behavior and started consistently act-
ing like the exclusive possessor of the land:

239. See Nicole Stelle Garnett, The Public-Use Question as a Takings Problem, 71
GEO. WASH. L. REV. 934, 970 (2003).
240. James II, 125 F. Supp. 3d at 1091-92.
241. Id. at 1086-87.
242. Id. at 1087.
243. Id. at 1084-85.
244. Id. at 1098.
976 The Urban Lawyer Vol. 48, No. 4 Fall 2016

Specifically, after the May 2013 seizure of James’ signs and the filing of the [f]irst
[a]ction, the City made well known to James that, despite its earlier mixed messages
regarding James’ possession, the City was now taking exclusion possession of the
subject property. In particular, the City established unequivocally that it was taking
possession of the subject property by: (1) filing in the State Action an August 15,
2013 Certification stating that the City took possession of the subject property on
June 4, 2010; (2) notifying James’ then-attorneys that James does not have a
legal right of possession to the subject property, that neither James nor any other
person is authorized to enter the subject property, and that any personal property
found on the subject property will be removed without notice; and (3) issuing tax
reimbursement checks on the subject property to James.245

Thus, the court concluded:
These actions left no question that the City was exercising its right of possession of
the subject property to the exclusion of James, and the City took no contradictory
actions suggesting to James that she still had possession of the subject property
(such as by taxing James and/or requiring her to maintain the property as it previ-
ously did).246
Once the court determined the City now has exclusive possession of the
land, it had little problem disposing of the property owner’s federal
claims. Her Fourth Amendment rights were not violated, because the
City has a clear possessory interest in the land, and its seizure of the
signs was reasonable.247 The City provided her all the process that
was due under the circumstances because it gave pre-deprivation notice
and “announced its intentions” to the owner which allowed her the
chance to remove or retrieve them.248 It was also not a free speech prob-
lem because it is not a public forum for speech, it is “a vacant lot on
which a fire station is to be built, and the City never opened it to the
public.”249 Without these federal claims, the court refused to exercise
supplemental jurisdiction over the owner’s state law claims.250
What is left is the City’s ongoing eminent domain case in state court, in
which it estimates the compensation for the land taken is $521,000.251
C. Tennessee Doesn’t Allow Private Condemnation
for Better Access, Only to Create Access to
Otherwise Landlocked Parcels
Some jurisdictions have statutes which permit private-condemnation
actions in which the owner of a landlocked parcel can exercise

245. Id. at 1091-92.
246. Id. at 1092.
247. Id. at 1093.
248. Id. at 1094.
249. Id. at 1096.
250. Id. at 1098.
251. Id. at 1085.
Recent Developments in Eminent Domain 977

eminent domain to take the property of a neighbor for access. They are
somewhat like common law easements by necessity and they have
been seen in Pennsylvania252 (private takings still must serve a public
purpose) and Colorado253 (condemning owner must have concrete de-
velopment plans), for example.
In Vise v. Pearcy Tennessee River Resort Inc., the Tennessee Court
of Appeals reviewed that state’s private condemnation statutes and
concluded they only allow use of the private-condemnation mecha-
nism to create access to a landlocked parcel, not allow an owner
who already enjoys limited access to condemn a neighbor’s property
to create “better” access.254
Pearcy’s parcel was not completely landlocked, and dirt roads over a
neighboring Tennesse Valley Authority (TVA) owned parcel allowed
limited access.255 Another neighbor, Vise, developed their parcel into
a private resort and, with TVA’s permission, paved a road partially
on TVA’s land to allow access to its newly-developed parcel.256 Pearcy
began using the paved road to access its parcel also, and “[a]s a result of
the exclusive use of the blacktop road, the dirt roads originally used by
the Appellants fell into disrepair and became impassable.”257
Pearcy asked TVA for an easement so it could also develop its par-
cel into an RV park.258 TVA’s permission was contingent on Pearcy
also gaining rights to use a portion of Vise’s property.259 When
Vise would not agree, Pearcy filed a private condemnation action
under Tennessee law to condemn an easement.260
The trial court rejected the claim and the court of appeals af-
firmed.261 Pearcy’s parcel already enjoyed access to its parcel over
the dirt roads and was not landlocked. Yes, the access was bad and
it would not permit the type of access Pearcy needed to develop the
property. But it was sufficient to allow access to Pearcy’s parcel for
“farming purposes,” and that was enough.262 Strictly construing the

252. See In re Opening a Private Rd. for Benefit of O’Reilly, 5 A.3d 246 (Pa.
253. See The Glenelk Ass’n v. Lewis, 260 P.3d 1117 (Colo. 2011).
254. No. W201400640, 2015 WL 4273492, at *5 (Tenn. Ct. App. July 15, 2015),
reh’g denied, ( July 31, 2015).
255. Id. at *1.
256. Id.
257. Id.
258. Id. at *2.
259. Id.
260. Id.
261. Id. at *1.
262. Id. at *4.
978 The Urban Lawyer Vol. 48, No. 4 Fall 2016

two statutes,263 the court concluded that existing access was “adequate
and convenient” and that “it would be a nonsensical result to allow a
petitioner to make better use of their land at the expense of another’s
property rights.”264 Section 102 only applies when a parcel is totally
landlocked and section 101 only allows private condemnations when
access is refused, as the court noted:
Because the statutory requirement has not been met, and because a private condem-
nation may not be used to make better use of a property when access to the property
is already established, we conclude that the trial court did not err in determining that
the Appellants are not entitled to their condemnation action under Section 101.265
A reminder that these statutes should be narrowly viewed and have a
very limited scope.
D. Court of Appeal Files Pro-Condemnor Amicus
Brief in California Supreme Court “Entry Statute” Case
The California Court of Appeal did not formally file an amicus brief in
favor of the Government in Property Reserve, Inc. v. Department of
Water Resources, a case now pending in the California Supreme
Court.266 But the court’s opinion in Young’s Market Co. v. Superior
Court, does seem like a brief in support of the Department of Water
Resources in Property Reserve.267
In Property Reserve, which has been briefed and argued, the Cali-
fornia Supreme Court is considering whether pre-condemnation en-
tries sought by the California Department of Water Resources conform
to the “entry statute” or are so extensive as to be takings triggering the
protections of the eminent domain code.268 A different court of appeal
had concluded the proposed entries were takings.269
However, the court of appeal in Young’s Market Co. did not see
things the same way as the court of appeal in Property Reserve, and
concluded that the entries which the condemnor sought were not as ex-
tensive, and did not interfere with the owner’s use and enjoyment of its
property.270 A couple of things, however, stood out.

263. TENN. CODE. ANN. §§ 54-14-101, 54-14-102 (2016).
264. Vise, 2015 WL 4273492, at *5.
265. Id.
266. 168 Cal. Rptr. 3d 869 (Cal. Ct. App. 2014), appeal docketed, 326 P.3d 976
(Cal. May 3, 2016).
267. See 195 Cal. Rptr. 3d 18 (Cal. Ct. App. 2015), rev’d, 363 P.3d 697 (Cal. Jan.
13, 2016).
268. See 326 P.3d 976.
269. Prop. Reserve, 168 Cal. Rptr. 3d at 898-99.
270. Young’s Mkt. Co., 195 Cal. Rptr. 3d at 34. For a more detailed discussion of
this case, see Brad Kuhn, Right of Entry Statutes are Back in Business—for Now, CAL.
Recent Developments in Eminent Domain 979

First, the court viewed the entry statute’s procedures as an “eminent
domain proceeding.”271 The problem is, under the California Consti-
tution, real eminent domain proceedings have one more element: the
right to have a jury determine compensation.272
Secondly, the court repeated the error two sentences later, so this
was not just an oversight: it really did believe that the procedure
under the entry statute, which admittedly look somewhat like eminent
domain in that it has things like deposits, unwilling entry, and the like,
was an eminent domain proceeding:
Such a proceeding is precisely what is permitted under the California Constitution,
article 1, section 19’s second clause, that is, an eminent domain proceeding with a
deposit of a court-determined amount of compensation prior to entry: “The Legis-
lature may provide for possession by the condemnor following commencement of
eminent domain proceedings upon deposit in court and prompt release to the
owner of money determined by the court to be the probable amount of just
Perhaps, but what about the first jury clause? The entry statute pro-
ceedings are not eminent domain proceedings.
Thirdly, the court also got wrong the physical occupation doctrine,
which views permanent physical occupations, regardless of how
minor, as takings.274 The court of appeal held that the condemnor’ s
activities here did not result in a physical occupation. The work
took a few days and did not impact Young’s Market’s buildings, but
the test borings were drilled, which looks pretty permanent and pretty
physical, even though it is hard to see how this had much of a long-
term impact.275 But one thing Loretto teaches is that it does not mat-
ter.276 That cable box was pretty de minimus, even though the court of
appeal saw it as more de maximis. Regarding Loretto, the court

Eminent Domain Rep. (Nov. 21, 2015),
271. Id. at 29 (“The present entry statutes provide for an eminent domain proceed-
ing by which a petitioner is authorized to conduct a broader range of examinations,
including ‘tests,’ ‘borings’ and ‘samplings.’ Indeed, the entry statutes authorize
only temporary entries for the limited purpose of engaging in ‘activities reasonably
related to acquisition or use of the property’ for the particular use that the property
is to be acquired by eminent domain” (internal citations omitted)).
272. CAL. CONST., art. I, § 19 (“Private property may be taken or damaged for a
public use and only when just compensation, ascertained by a jury unless waived,
has first been paid to, or into court for, the owner.”).
273. Young”Private pr, 195 Cal. Rptr. 3d at 25.
274. Id. at 31-32; see also Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419 (1982) (holding that the size of the property taken is not decisive in deciding
if a taking has occurred).
275. Id. at 21-22.
276. Loretto, 458 U.S. at 435.
980 The Urban Lawyer Vol. 48, No. 4 Fall 2016

concluded that the installation of the cable box on Ms. Loretto’s roof
would presumably have required follow up visits by the cable guys,
and in Young required fol, there was no such proposal.277 It is unclear
where how the court reached this conclusion. The case does not men-
tion there being any after-installation entries at issue.
In response to the court of appeal’s positive reaction to the entry stat-
utes in Young’s Market, a petition from the property owner, or at least
some kind of effort to hold off the court’s ruling until the California
Supreme Court decides Property Reserve is expected. Stay tuned.
E. West Virginia: Department of Transportation
Should Not Have Mined Privately Owned
Limestone Without Owner’s Permission
In West Virginia, mineral rights can be owned separately from the sur-
face estate.278 Not that unusual; something that one learns in the first
year of law school, in Property I. One might assume that condemning
agencies’ lawyers in West Virginia and similar jurisdictions under-
stand this and counsel his or her clients accordingly. Or maybe not,
according to the opinion of the West Virginia Supreme Court of Ap-
peals in West Virginia Department of Transportation v. Newton.279
“Mr. Parsons owned the surface, and Ms. Newton owned the min-
erals.”280 The Department of Transpiration (DOT) was building a
highway and asked Mr. Parsons whether it could enter his land to
test it.281 He said yes. The DOT condemned and paid him for the
land it needed for its highway project; but it also mined and took lime-
stone for the road from the land.282 Did the DOT assume that Mr. Par-
sons also owned the mineral rights? Was there some other reason that
it did not ask Ms. Newton? This is not clear.
What is clear is that Ms. Newton did not approve. She brought a
mandamus action to compel the DOT to institute eminent domain
proceedings.283 Trial court concluded that the DOT should have

277. Young’s Mkt. Co., 195 Cal. Rptr. 3d at 23-24 (“After that time, [Condemnor]
does not claim any property right, recurring right to enter, or right to continually mon-
itor the testing areas, as the cable companies presumably would monitor or service
their permanently affixed cable boxes in Loretto or permanent appropriation as the
government committee did in Horne v. Department of Agriculture, 135 S. Ct. 2419
278. See W. Va. Dep’t of Transp. v. Newton, 773 S.E.2d 371, 374 (W. Va. 2015).
279. Id.
280. Id.
281. Id.
282. Id.
283. Id. at 375.
Recent Developments in Eminent Domain 981

condemned her interests, and the DOT filed an eminent domain action
with the valuation date established as the date the DOT filed its emi-
nent domain complaint.284 After valuation was established, the DOT
appealed, asserting, among other arguments, that the trial court got
the date of valuation wrong.285 The DOT’s argument was “convo-
luted,” it is understand that the date of the take is the date of valuation,
and as best anyone can tell, its argument was that the date of valuation
should have been earlier, when it actually mined and took the lime-
stone.286 Perhaps the market value of limestone was lesser then that
later, but this is unclear.
The Supreme Court of Appeals of West Virginia affirmed the trial
court’s conclusion that the DOT acted in bad faith when it mined
and removed Newton’s limestone for use in a highway project without
her permission.287
The court resolved each of the DOT’s eight other points of error in
favor of Ms. Newton, also.288
F. North Carolina Court of Appeals: No Taking Even
Though Department of Transportation Cut Off All
Of Property’s Northern After Parcel Gained
Eastern Access
In North Carolina, a property owner has a right to direct access to ad-
jacent highways, and “[i]f the State’s action eliminates all direct ac-
cess to the abutting road, then the action is ‘a taking as a matter of
law.’ ”289 And it does not matter if the parcel has alternative access
to the road.290 Unless the abutting highway moves, according to the
North Carolina Court of Appeals in Department of Transportation v.
BB&R, LLC.291
In that case, there was no dispute that the DOT’s road project took a
portion of BB&R’s land on which a convenience store/gas station was

284. Id. at 379.
285. Id. at 378.
286. Id.
287. Id. at 379. (“We also do not believe that, for purposes of the date of the take, it
is relevant as to whether DOH’s conduct was in bad faith or an honest mistake. The
controlling fact is that DOH did not seek to condemn the limestone it took until after
the property was removed and used in helping to build the highway.”).
288. Id. at 386.
289. Dep’t of Transp. v. BB&R, LLC, 775 S.E.2d 8, 13 (N.C. Ct. App. 2015) (quot-
ing Dep’t of Transp. v. Harkey, 301 S.E.2d 64, 71 (N.C. 1983)).
290. BB&R, 775 S.E.2d at 13-14.
291. Id. at 14.
982 The Urban Lawyer Vol. 48, No. 4 Fall 2016

located, and that before the taking, the property enjoyed direct access
to Dowdle Mountain Road along the property’s northern side.292
However, the court concluded the DOT was not liable for a taking
of BB&R’s northern Dowdle Mountain Road access because after the
taking, it had access from the eastern side of the parcel.293 But what
about the rule in Harkey that alternative access in the after condition
does not matter? It is not applicable, held the court, because Dowdle
Mountain Road was rerouted, and the parcel now enjoys direct access
to the road from its eastern side:
Here, however, DOT’s closure of the section of Dowdle Mountain Road that abutted
the northern frontage of defendant’s property did not eliminate all direct access from
defendant’s property to Dowdle Mountain Road. There is direct access to the re-
routed Dowdle Mountain Road at the eastern boundary of defendant’s property.294

According to the court, the property owner did not really lose any-
thing: before the taking, it had two access points, and after the taking
it had two. Never mind that Dowdle Mountain Road was in a different
location after the taking, and “[a]t most, the re-routed road results in a
vehicle having to travel a maximum of 650 feet more than it had to
travel before to access defendant’s property from the highway.”295
The court rejected the owner’s contention that its access was sub-
stantially interfered with, concluding that in the after condition, it
“still has ‘reasonable means of ingress and egress’ from Dowdle
Mountain Road to the property. Defendant’s access to Dowdle Moun-
tain Road was simply re-located to the eastern section of its property
due to the re-routing of Dowdle Mountain Road.”296 Which sounds a
lot like alternate access.
G. California Court of Appeals: “Temporary No-
Build Area” While City (Maybe) Gets Around to
Condemnation is a Taking
The powers-that-be planned on building a major freeway interchange,
part of which was going to be on the property owned by Jefferson
Street Ventures.297 The problem was, Jefferson Street also had plans
for its property (a shopping center) and when it came time for it to
apply to the City of Indio for permits to build, the City said yes, but

292. Id. at 10.
293. Id. at 14.
294. Id. at 13.
295. Id.
296. Id. at 14 (internal citations omitted).
297. Jefferson St. Ventures, LLC v. City of Indio, 187 Cal. Rptr. 3d 155, 161 (Cal.
Ct. App. 2015).
Recent Developments in Eminent Domain 983

only if Jefferson Street left open and did not build on the eleven acres
on which the interchange was envisioned.298
The City said it was going to buy it eventually, but the complex fed-
eral and state process for studying, evaluating, and funding the project
takes a long time, and if Jefferson Street build on it now, it was going
to cost the City more in the future to take the developed property and
relocate all of the tenants.299
In Jefferson Street Ventures, the California Court of Appeal con-
cluded that the City’s condition was a taking of the “Temporary
No-Build Area.”300 There was no claim that Jefferson Street’s devel-
opment proposal caused or contributed to the need for a freeway
interchange, and the only evidence in the record for why the City im-
posed the condition was that it might cost more in the future for it to
condemn the property.301
After this ruling, the County instituted an eminent domain action,
and the Court of Appeal remanded the case to the Superior Court
for consolidation with the pending condemnation.302
H. North Carolina Court of Appeals: “Map Act,”
Which Land Banks Property for Future Highways,
is a Taking
In Kirby v. North Carolina Department of Transportation, the North Ca-
rolina Court of Appeals not only held that the property owners’ claims
were ripe, but that the Map Act, which gives the DOT the ability to des-
ignate property for future highway use and prevent its development in the
meantime, effected a taking.303 The court reversed the trial court’s dis-
missal and sent the case back down for a calculation of the compensation
owed to each property owner.304 A big win for the property owners.
The short story is that the North Carolina Legislature adopted a stat-
ute which allows the DOT to designate future highway corridors, but
does not require it to actually acquire the property.305 Once the DOT

298. Id. at 163-64, 174.
299. Id. at 165.
300. Id. at 169.
301. Id. at 174 (“The City’s primary rationale for removing 11 acres from the oth-
erwise developable site was that it planned to acquire all or some of the development-
restricted property for construction of the Interchange Project and if development of
that property was permitted, the City could incur additional costs for the buildings
and relocation of tenants.”).
302. Id. at 181.
303. 769 S.E.2d 218, 236 (N.C. App. 2015).
304. Id.
305. Id. at 222.
984 The Urban Lawyer Vol. 48, No. 4 Fall 2016

files a map showing the location of the future highway with a county
registrar of deeds, the owners of the properties designated cannot even
pull building permits.306 Although there are means for property own-
ers to seek relief from the development prohibition, that process is a
limited one and a property owner must show extreme hardship.307
The stated purpose of the Act is to keep acquisition costs low.308
The court of appeals concluded that the property owners’ claims for
inverse condemnation, regulatory takings, and equal protection were
ripe because the Act and the filing of the maps were an exercise of
the state’s power of eminent domain, and not merely the state “regu-
lating” property under its police power as the DOT argued.309 Relying
on the rationale of a Florida Supreme Court case, Joint Ventures, Inc. v.
Department of Transportation,310 the court held that the purpose of the
Act was to reduce the cost of acquisition in the event of future condem-
nation, and was thus an exercise of the eminent domain power.311 In
other words, a taking.
There is a lot of good language and quotations in the Kirby opinion,
but the heart of the decision is on pages 227-235, with the crux of the
takings rationale set out on pages 233-235. Once the DOT files a map
with the register of deeds, the Act bars the issuance of building per-
mits, “and are absolute.”312 The court rejected the DOT’s argument
that this was “merely” a “temporary three-year restriction on new im-
provements” which eventually will be lifted.313 To the contrary, the
court concluded that the prohibition on use could last as long as
sixty years, based on a letter sent from DOT’s Chief Operating Offi-
cer.314 This is a taking:
Therefore, with potentially long-lasting statutory restrictions that constrain Plain-
tiffs’ ability to freely improve, develop, and dispose of their own property, we
must conclude that the Map Act is distinguishable from the cases that established
the rule that “the recording of a map showing proposed highways, without any pro-
vision for compensation to the landowners until future proceedings of condemna-
tion are taken to obtain the land, does not constitute a taking of the land, or interfere
with the owner’s use and enjoyment thereof.”315

306. N.C. GEN. STAT. § 136-44.51(a) (2016).
307. § 136-44.52.
308. 1987 N.C. SESS. LAWS 1520 (2016).
309. Kirby, 769 S.E.2d at 232.
310. 563 So. 2d 622, 627 (Fla. 1990).
311. Kirby, 169 S.E.2d at 231-32.
312. Id. at 234.
313. Id.
314. Id. at 235.
315. Id. (quoting Browning v. N.C. State Highway Comm’n, 139 S.E.2d 227, 230-
31 (N.C. 1964)).
Recent Developments in Eminent Domain 985

In other words, the map designations were not merely preliminary
planning, as the DOT argued, but clouded the plaintiffs’ ability to
use and market their properties.
Having concluded that the Act works a taking, the court remanded
the case to the trial court “to consider evidence concerning the extent
of the damage suffered by each Plaintiff as a result of the respective
takings and concerning the amount of compensation due to each Plain-
tiff for such takings.”316
I. Nevada: No Regulatory Taking When Department
of Transportation Announced Future Plans to
In State ex rel. Department of Transportation v. Eighth Judicial Cir-
cuit, the Nevada Supreme Court covered similar territory addressed
by other courts concerning whether there is a taking when an agency
with the power of eminent domain takes steps to condemn property,
but has not actually done so yet.317 Here, the Nevada court concluded
that there was not a taking because even though the DOT announced
“Project Neon,” a “six-phase, 20- to 25-year highway improvement for
the Interstate Highway 15 (I-15) corridor between Sahara Avenue and
the U.S. Route 95/I-15 interchange in Las Vegas” which included
plaintiff ’s property, it did not result in a “de facto moratorium” on de-
velopment as the property owner characterized it.318
Rather, the court viewed the DOT’s actions as preliminary because
the plaintiff ’s property “is not anticipated to be needed for Project
Neon until 2028, if at all.”319 The plaintiff had not introduced evi-
dence that the DOT’s actions resulted in a physical taking or an eco-
nomic wipeout.320 Indeed, the court viewed the plaintiff ’s failure to
submit evidence at the summary judgment phase of specific economic
harm caused by the DOT’s actions to be a sign that the harm it suf-
fered was “negligible,” and thus it also rejected the plaintiff ’s Penn
Central argument.321 According to the court, the DOT’s actions
were not egregious enough and the designation of plaintiff ’s property

316. Kirby, 769 S.E.2d at 236. For more on the issue of map designations see Trent
Andrews, Official Maps and the Regulatory Takings Problem, 2011 B.Y.U. L. REV.
2251 (2011).
317. 351 P.3d 736 (Nev. 2015).
318. Id. at 738.
319. Id. at 743.
320. Id.
321. Id. at 742-44.
986 The Urban Lawyer Vol. 48, No. 4 Fall 2016

for future acquisition was only one of those regulations that adjusts the
benefits and burdens of economic life.322
Finally, the court distinguished between “precondemnation dam-
ages” and “just compensation for precondemnation activities,” holding
that the former may be recoverable if the government engages in pre-
condemnation activities that are unreasonable or oppressive but only if
there has already a determination that there has been a taking.323 This
passage in the court’s opinion is very muddled but the Nevada court is
essentially holding that when cases present these facts, any economic
impact on property is not going to factor into the takings liability ques-
tion unless it is very severe.
J. New Jersey Court: There’s No Substitute for the
Eminent Domain Process, Even on the Shore, Even
in an “Emergency”
Minke Family Trust v. Township of Long Beach is a trial court’s opin-
ion in one of the Jersey Shore “dune replenishment” cases.324 These
are cases in which owners of beachfront property, or in one case, a mu-
nicipality itself, objected to the state and local governments summarily
taking easements on private property to be used to armor the shoreline
against future hurricane damage.325 In response to Hurricane Sandy,
the federal government threw $3.461 billion at the shoreline in New
Jersey and other states damaged by the hurricane, and as part of the
package, the state and local governments were tasked with being “re-
sponsible for the rapid acquisition of property” needed.326
The main issue in the cases is whether the government can take
easements on private property by simply declaring that it has done
so, without first condemning the easements under New Jersey’s emi-
nent domain statutes.327 The court framed the issue this way:
The core issue presented in Count III is whether the shore protection provisions of
the DCA authorize a municipality to effect an immediate taking of a perpetual ease-
ment without instituting a condemnation action pursuant to the Eminent Domain
Act, N.J.S.A. 20:3-1 to 20:4-22, namely the negotiation and valuation process to
set the value of the taken property and pay any just compensation due.328

322. Id. at 742.
323. Id. at 745.
324. No. OCN-L-3033-14, slip op. at 1-2 (N.J. Super. Ct. Law Div. Feb. 13, 2015).
325. Id. at 4-5.
326. Id. at 4.
327. Id. at 9.
328. Id. at 11.
Recent Developments in Eminent Domain 987

The court held no, concluding that in order to take these easements,
even if it is an emergency, the government must do so by eminent do-
main.329 And that means following the statutory process for condemn-
ing and taking property under the Eminent Domain Act.330 The court
granted the property owners summary judgment on that matter.331
Yes, this qualified as an emergency under the statutory definition
but that does not mean the government can simply take property with-
out going through the condemnation process:
Nevertheless, the court finds that the DCA does not authorize the Township to ef-
fectuate a taking of plaintiff ’s property and filing a deed of perpetual easement with
the County Clerk without instituting a condemnation proceeding pursuant to the
Eminent Domain Act. If the Township wishes to acquire perpetual interests in plain-
tiff ’s property for shore protection measures, it must adopt an ordinance authorizing
the acquisition under the DCA and comply with the procedural requirements of the
Eminent Domain Act. The fact that the DCA provides the right of the property
owner to receive just compensation at a later date does not militate against this

The Town had conceded that it was taking private property, which
meant that the requirements of the New Jersey Constitution’s takings
clause kicked in. The court concluded that if the Town needed the
property quickly, it could do so under the eminent domain procedures:
The Legislature did not intend, with the enactment of the Disaster Control Act, to
trump the procedural due process under the Eminent Domain Act, which is guaran-
teed to a property owner faced with a taking of their property. The court is not un-
mindful of the sense of urgency on the part of State and local officials who desire to
move expeditiously with the Federal funding earmarked for dune protection mea-
sures following the wrath of Hurricane Sandy. The court is also cognizant of the
extensive efforts undertaken to obtain grants of easements on a voluntary basis
by affected property owners. The proper course for governmental agencies dealing
with property owners, who have not voluntarily granted deeds of easements, is to
promptly institute condemnation actions. A taking can only occur when a munici-
pality files and records declaration of taking under the Eminent Domain Act pursu-
ant to N.J.S.A. 20:3-17. It follows that the unilateral act by the Township in filing
and recording an unsigned deed of easement with its covenants against plaintiff ’s
property following its resolution is without any legal basis and must be set aside
and removed from the County records.333

329. Id. at 11-12.
330. Id. at 11.
331. Id. at 14.
332. Id. at 11-12.
333. Id. at 14 (internal citations omitted).
988 The Urban Lawyer Vol. 48, No. 4 Fall 2016

K. Georgia Court of Appeals: Property Owner
Entitled to Temporary Takings Damages in
Addition to Attorneys’ Fees When Condemnor
Drops Case
In Fincher Road Investments, LLLP v. City of Canton, the court held
that a condemnee was entitled to recover attorneys’ fees and costs
when the condemnor abandoned a taking, and was entitled to recover
just compensation for the temporary cloud which the condemnation
placed on the property.334
This started as a quick-take and the City deposited $787,400 with
the court, after which the court declared that the City had title.335
The owner objected to the taking itself and to the amount of compen-
sation, and after the court denied the owner’s petition to set aside the
taking, the owner appealed.336 The court of appeals held the trial court
should have considered certain facts about the timing of notice of the
condemnation.337 When the case was remanded, the City told the trial
court it no longer wanted the property because “it had determined con-
demnation of the property was ‘no longer necessary for public
use.’ ”338 It dismissed the condemnation action.
The City agreed with the owner that under a Georgia statute, the
City was liable for attorneys’ fees and costs because the City had
abandoned the condemnation.339 The owner, however, claimed that
it was also entitled to just compensation for a temporary taking, for
the time between the quick-take and the City’s dismissal.340 The
City disagreed, arguing that the statutory remedy of attorneys’ fees
and costs was the owner’s sole remedy. The trial court agreed just
compensation was not available, and back the parties went to the
court of appeals.341
The court’s analysis starts with a reminder that private property is
“the most basic of human rights, and it is the charge of the courts to
defend them vigorously.”342 The court noted that Georgia’s quick-
take procedure means that fee simple title passed to the City upon

334. 779 S.E.2d 717, 718 (Ga. Ct. App. 2015).
335. Id.
336. Id. at 719.
337. Id.
338. Id.
339. GA. CODE ANN. § 22-1-12 (2016).
340. Fincher Rd., 779 S.E.2d at 719.
341. Id.
342. Id. (internal quotations and citations omitted).
Recent Developments in Eminent Domain 989

the deposit, which means that the City temporarily took the property,
even though it abandoned the permanent take.343
The court disagreed that it would be a “windfall” and double recov-
ery if the owner is provided with both fees and costs, as well as just
compensation, the former being a statutory requirement, and the latter
a constitutional command:
Here, while the City’s abandonment of its action undoubtedly entitled Fincher Road
to damages under [GA. CODE ANN.] § 22-1-12, the City2, nn.he City’sand obligation
to pay those statutory damages in no way relieved it of “the duty to provide com-
pensation for the period during which the taking was effective.”344

L. Florida Court of Appeals: Quick Take Deposit
Only Vests Owner’s Right to Compensation, Not to
Specific Funds
In Florida Department of Transportation v. Mallards Cove, LLP, a
regulatory takings case that followed on the heels of a straight con-
demnation, the Florida District Court of Appeals held that there was
no taking because the plaintiff did not own the interest on the
quick-take deposit.345
The DOT condemned property belonging to Mallards Cove via Flor-
ida’s quick take procedure, by which certain agencies may obtain imme-
diate possession and title, provided they deposit a good-faith estimate of
the land’s value with the clerk of the court.346 Under Florida law, the
property owner’s right to just compensation is then vested, and two
weeks later, the property owner withdrew the $2 million deposit.347
While the funds were on deposit, the clerk invested it, and under a Flor-
ida statute, 90% of the interest went to the DOT.348 The eminent domain
case wrapped up, with the owner agreeing that the final judgment rep-
resented full compensation for the property taken.349
But the owner was not finished: it filed a separate lawsuit, alleging
the interest the clerk earned on the deposit was its property, and that
the DOT and the clerk took that property without just compensa-
tion.350 The trial court agreed, because the deposit vested in the
owner, meaning that the interest also became its property.

343. Id. at 721.
344. Id. at 722 (internal citations omitted).
345. 159 So. 3d 927, 929-30 (Fla. Dist. Ct. App. 2015).
346. Id. at 930.
347. Id.
348. Id. at 930-31.
349. Id. at 931.
350. Id.
990 The Urban Lawyer Vol. 48, No. 4 Fall 2016

The court of appeals, however, disagreed, holding that while inter-
est is a component of just compensation, the interest in this case was
not “property.”351
First, the judgment in the eminent domain case was final and the
property owner could not, in effect, seek additional compensation in
a second action.352 Second, the court rejected the owner’s claim that
its property interest in the interest was separate from its property inter-
est in the land taken, and that since its interest in the deposit vested
immediately, the interest earned on the deposit also belonged to
it.353 The court concluded that condemnees’ rights are indeed vested
upon the deposit but that the right is one to full compensation, not
the right to the specific funds on deposit.354
Having determined that, the prior eminent domain judgment meant
the case was over. A decision somewhat governed by semantics, be-
cause if the owner indeed had the right to compensation immediately
upon deposit, it should also have the right to the time value of that
compensation from that point forward. The only question left is
whether the outcome might have been different had the owner not stip-
ulated in the eminent domain case that it was fully satisfied, but had
pursued the claim for interest there.

V. Practice Issues
A. Virginia: Jury Gets to Hear About Appraisal
In Ramsey v. Commissioner of Highways, the Virginia Supreme Court
held that the jury can be told about a condemnor’ s earlier appraisal
that valued the taken property higher than its current appraisal.355
Under Virginia’s condemnation procedures, as a prerequisite to a
court exercising jurisdiction over an eminent domain action, a state
condemning agency must, as an initial step, present to the property
owner a statement of “the amount which [the condemnor] believes
to be just compensation,” and must include an appraisal if an appraisal
is required:
The state agency concerned shall provide the owner of real property to be acquired
with a written statement of, and summary of the basis for, the amount it established

351. Id. at 933-34.
352. Id. at 934.
353. Id.
354. Id.
355. 770 S.E.2d 487, 491 (Va. 2015).
Recent Developments in Eminent Domain 991

as just compensation, and, if an appraisal is required or obtained, such written state-
ment and summary shall include a complete copy of all appraisals of the real prop-
erty to be acquired that the state agency obtained prior to making an offer to acquire
or initiating negotiations for the real property.356
The DOT took a portion of the Ramseys’ property for a highway proj-
ect and presented them with the required statement, which valued their
land at $246,292.357 At trial however, a new DOT appraiser opined the
taken land at $92,127.358 The trial court viewed the earlier required
“statement” as a settlement offer and prohibited the property owner
from both telling the jury about it and fully cross-examining the state’s
appraiser.359 The jury never got to hear about the earlier lower ap-
praisal, nor the reasons why the state’s trial argument of just compen-
sation was radically different, and rendered a valuation verdict that re-
quired the property owners to pay the DOT $14,675 plus 3% interest
from the date which they withdrew the deposit.360
The Virginia Supreme Court disagreed, and concluded that the
statement wasn’t a settlement offer because it must be made “before
initiating negotiations.”361 The court agreed with the logic of the
Fifth Circuit in United States v. 320.0 Acres of Land, which held
that a similar statement of just compensation, required by the federal
relocation act (on which the Virginia statute is modeled), was not a
settlement offer and the trier of fact was entitled to hear about it
and why the government’s estimate changed.362
The court rejected the DOT’s contention that this evidence would be
too prejudicial.363 The statement was relevant and any prejudice that
DOT’s would experience was outweighed by the constitutional imper-
ative and the ability of the DOT to explain to the jury why its view of
just compensation changed so dramatically. The court wrote, “Permit-
ting the landowner to dispute a condemning authority’s contention of a
lower value at trial . . . ‘will serve as a limited [and wholly appropri-
ate] check on the broad powers of the State in condemnation
proceedings.’ ”364

356. Id. at 489 (discussing Va. Code Ann. §§ 25.1-204 (2016)).
357. Ramsey, 770 S.E.2d at 488.
358. Id.
359. Id. at 488-89.
360. Id. at 489.
361. Id at 489-90.
362. 605 F.2d 762 (5th Cir. 1979).
363. Ramsey, 770 S.E.2d at 490.
364. Id. at 490-91 (quoting Mich. Dep’t of Transp. v. Frankenlust Lutheran Con-
gregation, 711 N.W.2d 453, 462 (Mich. Ct. App. 2006) (alterations in original)).
992 The Urban Lawyer Vol. 48, No. 4 Fall 2016

Hopefully, the Virginia Supreme Court’s opinion will add to the
growing trend of courts viewing tactics such as this with disfavor.365
As the Fifth Circuit noted in 320.0 Acres, “the Government [should]
not [be] completely free to play fast and loose with landowners telling
them one thing in the office and something else in the courtroom.”366
B. Condemnor’s Higher Initial Appraisal, Offer, and
Deposit Admissible
In Coleman v. Mississippi Transportation Commission, the Mississippi
Supreme Court held that evidence of the condemnor’s initial appraisal,
its offer, and its deposit, were admissible when its appraiser presented
a lower valuation at trial.367 The appraiser was also subject to cross-
examination about why he lowered his valuation.368
The court concluded that the property owner was entitled to intro-
duce evidence of the condemnor’s initial offer and deposit of
$380,300 and to cross-examine the Commission’s appraiser about
why his trial testimony was that the property was worth nearly
$100,000 less, $289,400.369 The trial court prohibited the jury from
learning about the deposit and earlier appraisal, concluding it was
part of settlement and compromise and thus excludable under Missis-
sippi Rule of Evidence 408.370 The court also prohibited the property
owner’s appraiser from testifying that the property was worth
$799,000, because he “could not explain his appraisal methods.”371
The court entered a directed verdict for $289,400.372
Relying in part on United States v. 320.0 Acres of Land,373 the Mis-
sissippi Supreme Court concluded that the condemnor’s initial appraisal,
a valuation required by state statute, was relevant and admissible, and
was not an offer of settlement to be excluded under Rule 408.374
First, an appraisal is not an offer of settlement or compromise, it is an
appraisal. Second, under Mississippi law, things that happen before a
condemnation complaint is filed are not subject to Rule 408 because

365. See, e.g., Coleman v. Miss. Transp. Comm’n 159 So. 3d 546 (Miss. 2015)
(reaching identical result on very similar facts).
366. 605 F.2d at 825.
367. 159 So. 3d at 548.
368. Id.
369. Id. at 549-550.
370. Id.
371. Id. at 550.
372. Id.
373. 605 F.2d 762 (5th Cir. 1979).
374. Coleman, 159 So. 3d at 551.
Recent Developments in Eminent Domain 993

there’s no disputed “claim,” as the rule requires.375 Eminent domain is
different, because the “claim” does not arise until the complaint is filed,
unlike other civil actions were the “claim” arises when the duty or con-
tract is breached, even if a complaint has not yet been filed.376
The court also concluded that the Commission’s offer as well as the
deposit was admissible, subject to a ruling on whether the jury would
be too prejudiced by this evidence:
We find that MTC’s first appraisal, in addition to cross-examination thereon, should
have been available to the jury for consideration of MTC’s prima facie demonstra-
tion of value and Coleman’s claim to just compensation. Because the appraisal was
erroneously excluded under Rule 408, where that rule did not apply, this exclusion
was reversible error. We note that the appraisal, like all proffered evidence, is still
subject to the Rule 403 considerations discussed earlier. Concerning Coleman’s
contention that exclusion of the quick-take deposit and the initial offer also consti-
tuted error, we find that, having been excluded subject to Rule 408, such exclusion
was erroneous, as neither the offer nor the deposit is the type of “offers of compro-
mise” covered by Rule 408. It may be the case on remand, however, that evidence
of the deposit or offer is inadmissible under Rule 403.377

B. Connecticut Court of Appeals: Prospective
Purchaser Cannot Testify as Expert About
In Department of Transportation v. Cheriha, LLC, the Connecticut
Court of Appeals held that a prospective purchaser is not a valuation ex-
pert and thus cannot testify about the value of the taken property.378 The
case involved the condemnation of a parcel in New Britain at the inter-
section of Beaver and Washington Streets.379 The trial court did not
allow the property owner to introduce the testimony of one Dr. Sheik
Ahmed, who was prepared to testify that seventeen months before the
taking he had submitted a letter of intent to buy the parcel for a price
in excess of the property owner’s appraiser’s trial valuation.380 The
court of appeals held that it was proper to exclude Dr. Ahmed’s testi-
mony as it was in the nature of expert valuation evidence:
The defendant’s argument is belied by the record in this case, which discloses that
the defendant sought to introduce Ahmed’s testimony regarding his preliminary
offer as expressed in the letter of intent on the basis that it was ‘‘indicative of

375. Id. at 552 (“[T]his Court’s position on the admission of this specific type of
offer is clear: offers of compromise, in condemnation proceeds, cannot occur prior
to filing of a complaint.”).
376. Id. at 553.
377. Id. at 553-54.
378. 112 A.3d 825, 829-30 (Conn. App. Ct. 2015).
379. Id. at 828.
380. Id. at 829.
994 The Urban Lawyer Vol. 48, No. 4 Fall 2016

the fair market value’’ of the property. In addition, in its offer of proof, the defen-
dant suggested that Ahmed should be permitted to testify because of his extensive
background in the buying and selling of commercial properties. In light of this, it is
clear that although the defendant identified Ahmed as a fact witness, it predicated
the usefulness of his testimony on his asserted ability to assess the value of the prop-
erty as an expert. Accordingly, it was not an abuse of discretion for the court to pre-
clude his testimony on the basis that he lacked the expert qualifications to do so.381

C. California Court of Appeals: Condemnor’s
“Final” Pretrial Offer, Contingent on Approvals
from Other Agencies, Isn’t Really Final, Is It?
California law requires a condemnor to present to the property owner a
final pre-trial settlement offer twenty days before trial and for the
property owner to make a final demand.382 If a court later determines
that the condemnor’s final offer was unreasonable and the property
owner’s final demand was reasonable, the property owner is entitled
to litigation expenses.383
In City & County of San Francisco v. PCF Acquisitionco, LLC, the
court concluded that the offer by the city, which “was expressly made
‘contingent on the approval of the Federal Transportation Authority
[FTA], the Board of Directors of the San Francisco Municipal Trans-
portation Agency [MTA], and the San Francisco Board of Supervisors
[the Board]’ ” was unreasonable as a matter of law because it was not a
“final offer.”384 Thus, denying the property owner’s request for fees
and costs was an error.
The court held that the purpose behind the statute is to promote settle-
ment and that the City’s contingent offer, which might result in the prop-
erty owner getting nothing were the FTA, the MTA and the Board to re-
ject it, did not do so.385 Thus, the “final offer” “was not so much of an
‘offer’ as a ‘recommendation to enter a settlement.’ ”386 The Court stated:
Keeping in mind the statute’s purposes of promoting settlement and making a prop-
erty owner whole for the cost of unnecessary litigation, we do not think the Legis-
lature intended to make a condemnee chose between entering into an uncertain and
contingent bargain or risk losing any chance of recovering its litigation expenses if
it proceeds to trial.387

381. Id. at 831.
382. CAL. CIV. PROC. CODE § 1250.410 (West 2016).
383. Id.
384. 187 Cal. Rptr. 3d 591, 594 (Cal. Ct. App. 2015).
385. Id. at 595.
386. Id.
387. Id.
Recent Developments in Eminent Domain 995

The court also rejected the City’s argument that it was impractical for
it to use a different procedure; that it was exempt from the statute by
virtue of the City’s Charter.388
The court remanded the case for a determination of how much the
City owes the property owner for fees and expenses.389
D. Condemnor Entitled to Ask Jurors Whether They
Believe Department of Transportation
“Lowballs,” If Condemnor Hints It Does
In State v. Treeline Partners, Ltd., the court first comes up with a def-
inition of “lowball”:
In attempting to ask potential jurors whether they believe that the State “lowballs,”
the State’s attorney properly inquired about whether the venire members held a pre-
existing bias or prejudice that the State underestimates property values. See WEB-
STER’S NEW WORLD COLLEGE DICTIONARY 801 (3d ed. 1996) (defining “lowball” as
a verb meaning “to give an understated price, estimate, etc. to (someone), esp. with-
out intending to honor it” or “to so understate (a price, etc.)”).390
The case involved the State’s attempt to ask potential jurors and make
arguments about whether they believed that the State lowballs eminent
domain valuations.391 Now the State’s lawyer did not just conjure up
this line of questions out of thin air. The property owner’s lawyer did
not expressly suggest during void dire or closing arguments that the
State did so, but the lawyer did get close, and in closing stated that
the State’s “appraiser used ‘low ball numbers.’ ”392
The court also delved into what it means to “lowball” and the prop-
erty owner’s arguments that it did not really open the door.393 Addi-
tionally, the trial judge threatened contempt without giving a real rea-
son, which is a recipe for reversal.394
E. Colorado: Judicial Evidentiary Rulings, Not
Commission’s, Control in Eminent Domain
Valuation Hearings
In those states with a commission process in condemnation, the judge
gets to make the final call about what evidence is admissible.395 In

388. Id. at 596.
389. Id. at 597.
390. 476 S.W.3d 572, 577 (Tex. App. 2015).
391. Id. at 573.
392. Id. at 577.
393. Id. at 577-79.
394. Id. at 578-79.
395. See, e.g., Reg’l Transp. Dist. v. 750 W. 48th Ave., LLC, 357 P.3d 179 (Colo.
996 The Urban Lawyer Vol. 48, No. 4 Fall 2016

Regional Transportation Dist. v. 750 West 48th Avenue, LLC, the Col-
orado Supreme Court summed up the applicable rule of law suc-
cinctly: “commissioners have some implicit authority to make eviden-
tiary rulings without the oversight of the trial judge” but “the judge is
still the judge” and she gets the final call.396 So the commissioners
cannot “overrule” or “reconsider” a judge’s earlier ruling that evi-
dence is admissible nor can they ignore a judge’s instruction that
they disregard other evidence.
It should not have been too hard to presage that judges would con-
clude that judges have the final say, but apparently it was an unsettled
question in Colorado. The court had before it two commission rulings:
the first granted the property owner’s motion in limine to exclude the
condemnor’s expert from testifying about certain things, rendered after
the judge denied the same motion; the second was the commission first
determining that certain evidence was relevant, and then later the
judge instructing the commissioners to not consider it.397
In both cases, the judge wins and has the final say:
Despite the rather complex relationship between the judge and the commission dur-
ing eminent domain valuation hearings, the two issues presented in this case quickly
resolve themselves by reference to a simple maxim: judicial evidentiary rulings
control over commission evidentiary rulings.398

F. Kansas: Eminent Domain Litigation is a “Civil
Action” Subject to the Same Rules as Other Civil Cases
In Neighbor v. Westar Energy, Inc., the court concluded that Kansas’
“savings statute,” which allows a party in certain circumstances to re-
file a lawsuit that had been voluntarily dismissed without prejudice
within six months, applied to eminent domain cases.399
The details involve peculiarities of Kansas practice and eminent do-
main law, but the takeaway is that the court concluded that despite the
somewhat different procedures applicable to eminent domain cases
(the valuation is initially determined by a panel of three appraisers,
and if a party is dissatisfied with their conclusion, it may “appeal”
to the district court), the eminent domain statute also provides that
the appeal is “a new civil action” that “shall be tried as any other
civil action.”400 Thus, Kansas’s “savings statute” applied, and allowed

396. Id. at 183.
397. Id. at 180.
398. Id. at 183.
399. 349 P.3d 469, 470 (Kan. 2015).
400. Id. at 472 (quoting KAN. STAT. ANN. § 26-508 (2016)).
Recent Developments in Eminent Domain 997

Neighbor to refile his appeal of the panel valuation.401 The procedures
applicable to eminent domain cases are not so different unless the leg-
islature expressly has said so. Here, it had not.
G. United States Virgin Islands: No Appellate
Jurisdiction for Quick-Take Ruling Until Eminent
Domain Judgment Finalized
In Beachside Associaties, LLC v. Virgin Islands Water & Power Au-
thority, the Supreme Court of the Virgin Islands held that in a
quick-take action, a trial court’s order rejecting a property owner’s
claim that the condemnor did not have the power of eminent domain
is interlocutory and is not immediately appealable.402 First compensa-
tion must be determined and a final judgment entered before an appeal
can occur.403
This does not make practical sense. If the condemnor does not have
the power to take the property, why should the parties incur the costs
and delay in determining valuation? In Hawaii, a property owner is en-
titled by statute to calendar preference and an immediate interlocutory
appeal of a trial court’s decision upholding the power to take.404 And
that was the court’s problem: the court’s jurisdiction is determined by
statute, and the statute, unlike Hawaii’s, is limited to final judg-
ments.405 Virgin Island’s statute is modeled, “word-for-word identi-
cal” to the federal Declaration of Taking Act and the U.S. Supreme
Court has held that there is no right to appeal a quick take before
entry of final judgment.406

VI. Attorneys’ Fees
A. Florida: When Government Excessively Litigates
an Eminent Domain Case, “Full Compensation”
Requires Payment of Attorneys’ Fees
Those of who represent property owners on the business end of emi-
nent domain and practice in Florida or the few other states which
allow recovery of attorneys’ fees are lucky: the rest of the attorneys
who practice in places where they are not permitted, either as a

401. Neighbor, 349 P.3d at 470.
402. 62 V.I. 723, 726 (2015).
403. Id. at 727.
404. See HAW. REV. STAT. § 101-34 (2016).
405. Beachside Assoc., 62 V.I. at 726.
406. Id. at 726-727; Catlin v. United States, 324 U.S. 229, 236-37 (1945).
998 The Urban Lawyer Vol. 48, No. 4 Fall 2016

component of a constitutional command of just compensation or by
legislative grace, are envious.
It is understood that to force a property owner to bear its own fees
and costs to recover just compensation—compensation which the con-
demnor should have offered in the first place—effectively denies just
compensation and allows a condemnor to get away with an inadequate
offer simply because it may make little economic sense for the prop-
erty owner to fight back with a lawyer.407 Each dollar spent on attor-
neys is a dollar less the owner gets for her property.
But even if an attorney represent owners in a non-fee-recovery ju-
risdiction, however, he or she should read the Florida Supreme Court’s
opinion in Doerr Trust v. Central Florida Expressway Authority.408
The court recognized that denial of attorneys’ fees denies full compen-
sation.409 It understood that fees are necessary to make property own-
ers whole. It realized that property owners have no choice in these
matters and have done nothing wrong. It acknowledged that the
power of eminent domain is one of the highest powers of the
state.410 If that was not enough, the opinion contains valuable lessons
for both property owners and condemnors.
First, the bottom line: the court held that when the government is
“responsible for excessive litigation,” it is liable for attorneys’ fees
under Florida statutes.411
In the case, the Expressway Authority wanted roughly ten acres of
the Trust’s land, for which it offered $4.9 million.412 The trust said no
and the Authority condemned.413 The jury determined that $5.7 mil-
lion was just compensation.414 Florida has a statute alluded to above
that requires the payment of attorneys’ fees in this situation.415 The
first part of the statute bases the fee on the “benefits achieved” by
the lawyer.416 This is a list of percentages of the difference between
the precondemnation offer and the award (for example, for benefits
up for $250,000, the fee is 33%. For the benefits between $250,000

407. See Doerr Trust v. Cent. Fla. Expressway Auth., 177 So. 3d 1209, 1216 (Fla.
408. See generally id.
409. Id. at 1216-1217.
410. Id. at 1215.
411. Id. at 1217.
412. Id. at 1211-12.
413. Id. at 1212.
414. Id.
415. FLA. STAT. § 73.092 (2016).
416. § 73.092(1)
Recent Developments in Eminent Domain 999

and $1 million, 25%).417 Under this provision, the property owners
were entitled to a maximum of $227,652 in fees.418
The property owners, however, asserted that the court must consider
the “qualitative and quantitative” factors such as “novelty,” “skill,” the
amount involved, and the fees charged for similar legal services,
which are set out in the second part of the statute which governs fee
calculations for fees incurred in “defeating an order of taking, or for
apportionment, or other supplemental proceedings, when not other-
wise provided for.”419 Applying this standard, the trial court awarded
the property owner $816,000 in fees.420
The court of appeals reversed, and although it agreed the case had
been “over-litigated,” it held that the pre-condemnation offer “was not
so indefinite that the benefits achieved by the Landowners could not be
determined.”421 So it sent the case back down and required the trial court
to determine whether limiting the fee recovery to the $227,000 under the
benefits achieved statute would deny the owner full compensation.422
On remand, the trial court again sided with the owner, concluding
that the Authority “had engaged in a ‘clear pattern’ of excessive litiga-
tion.”423 It litigated the case aggressively. It changed its agreed-to val-
uation theory and retained a new expert, an economist who “made 16
assumptions.”424 The owner’s attorney needed to rebut and their (costly)
efforts paid off: the trial court prohibited the economist from testify-
ing.425 And the Authority spent “twice as much time deposing the Land-
owners’ experts as the Landowners spent deposing the Authority’s ex-
perts.”426 Thus, it would undercompensate the owners, and therefore
would be unconstitutional, if the court adhered to the “benefits
achieved” formula and limited fee recovery to $227,000 when the
owner had to expend much more responding to the Authority’s tac-
tics.427 The trial court reaffirmed its earlier $816,000 fee award.428
The Authority appealed and the court of appeals again reversed, stat-
ing the owners should have sought sanctions to address the abuse of

417. Id.
418. Doerr Trust, 177 So. 3d at 1212.
419. Id. (discussing FLA. STAT. § 73.092(2) (2016)).
420. Doerr Trust, 177 So. 3d at 1212.
421. Id.
422. Id.
423. Id. at 1213.
424. Id.
425. Id.
426. Id.
427. Id. at 1214.
428. Id.
1000 The Urban Lawyer Vol. 48, No. 4 Fall 2016

process.429 The average hourly rate of $87 per hour ($227,000 divided
by the number of hours the owner’s lawyers spent responding) was not
“patently unconstitutional.”430 But the court of appeals certified a ques-
tion to the Florida Supreme Court, which saw the issue this way:
In an eminent domain proceeding, when the condemning authority engages in tac-
tics that cause excessive litigation, is the benefits achieved formula in section
73.092(1), Florida Statutes, unconstitutional as applied to calculate attorney’s
fees for the hours incurred in defending against the excessive litigation?431
The court said yes.432 Florida’s constitution requires “full compensa-
tion,” and to implement this requirement, the legislature adopted the
fee recovery statute to make owners whole.433 But even though the
legislature has the power to adopt rules like the benefits achieved pro-
vision, which base the fee on a percentage of the benefits, that rule
cannot be applied so that it ends up denying the owner a fee recovery
that would make it whole.434
So when a condemnor does not play fair and the property owner
must respond, it is not fair to limit her fee recovery to the fees set
out in the benefits achieved statute.435 The government, after all, has
“potentially unlimited resources to allocate to abusive litigation and
legal representation” and it “places private property owners at a con-
siderable disadvantage” to hobble them with limited fee recoveries.436
The court applied a mixed approach. It read the the benefits
achieved statute to be constitutional only if the amount of time
spent in opposing the excessive litigation also gets analyzed under
the “quantitative and qualitative” factors part of the statute.437 Thus,
owners can get both benefits achieved fees that are attributable to
the actual award, as well as fees for time spent responding to a con-
demnor’s excess.
Applying that formula, the court concluded that it did not have en-
ough of a record to make a decision on how much the Authority owes
the owner in fees.438 It sent the case back down for an evidentiary
hearing to determine how much time was spent by the owner’s

429. Id.
430. Id.
431. Id. at 1214.
432. Id. at 1219.
433. Id. at 1215-16.
434. Id. at 1216.
435. Id. at 1216.
436. Id. at 1217.
437. Id.
438. Id. at 1218.
Recent Developments in Eminent Domain 1001

attorneys responding to the Authority respoong ton for an eviden-
tiary.439 This means that the owner will recover $227,000 in benefits
achieved fees, plus an hourly rate recovery for time spent responding
to the Authority’s tactics.
As for the sanctions suggested by the court of appeals as the method
of dealing with the bad behavior? The Supreme Court held that the
possibility of sanctions does not satisfy the constitutional requirement
of full compensation.440 Sanctions are discretionary and punitive,
while full compensation is a mandatory constitutional command.441
Besides, “excessive litigation” is not the bad faith behavior that is sub-
ject to sanctions, and while the Authority acted excessively here, it did
not act “in bad faith or with evil intent.”442
B. Florida Court of Appeals: Offer Early, Offer
Often—Early Pre-Condemnation Offer Does Not
Trigger Attorneys’ Fee Statute
In General Commercial Properties, Inc. v. Florida Department of
Transportation, the court held that a statute, which requires the trial
court to use the “first written offer” by the condemnor made prior to
the initiation of the eminent domain case as the benchmark when it is
calculating attorneys’ fees, does not mean that the DOT is stuck with
a very early offer it made under the “Early Acquisition Program.”443
Under this program, the DOT made early offers to owners for prop-
erties it wanted to acquire.444 There was no obligation on the part of
the owners to sell.445 As the court phrased it, it was an “arms-length
negotiation” with no eminent domain threat.446 This was supposedly
outside the usual eminent domain-related acquisition program and if
the owner turned down the offer, there was nothing the DOT could
have done.447 So in 2005, DOT made such an offer for $400,000 to
the owner, who turned down the offer.448

439. Id.
440. Id.
441. Id.
442. Id. at 1218.
443. 178 So. 3d 439, 440 (Fla. Dist. Ct. App. 2015).
444. Id. at 440.
445. Id.
446. Id.
447. Id.
448. Id. at 441.
1002 The Urban Lawyer Vol. 48, No. 4 Fall 2016

Nearly a decade later, DOT filed a condemnation action to take the
property, making an offer of $699,000.449 That too was rejected and
after trial, the final judgment awarded the owner $800,000.450
Under Florida’s fee-shifting statute, the owner sought attorneys’ fees
keyed to the EAP offer of $400,000.451 The statute allows recovery of
fees based on the difference between the “first written offer” and the
final award, and that early offer was the “first written offer” according
to the property owner.452
The court of appeals said no, there’s a difference between the EAP
written offer and the first written offer made during the condemnation
process, since the EAP offer is really an attempt to purchase without
the threat of eminent domain, and not like the sell-or-else “negotia-
tions” that occur precondemnation.453
Besides, the DOT’s EAP offer contained the condition that it was
not to be used for calculating attorneys’ fees, and the property
owner agreed.454
C. “Eminent Domain Abuse” Turnaround in Idaho:
Property Owner Liable for Condemnor’s
Attorneys Fees for “Extreme and Unlikely”
Appeal and Defenses
The Idaho Supreme Court’s opinion in Idaho v. Grathol is a case
where each piece seems okay but the whole result does not sit
well.455 “Eminent domain abuse” is what seemed to fuel the opinion.
Except here, it was not abuse of the property owner by the condemnor
but rather the other way around: the overall vibe of the opinion was
that the court was not too pleased with the property owner’s ap-
proach.456 It determined the appeal was “extreme and unlikely” and
assessed the property owner the attorneys’ fees and costs the govern-
ment incurred on appeal.457
It also concluded that the property owner may have interposed “ex-
treme and unlikely” defenses in the trial court, even though that court
had already concluded that the defenses were not unreasonable; the

449. Id.
450. Id.
451. Id.; FLA. STAT. § 73.092 (2016).
452. Gen. Commercial Prop., 178 So. 3d at 441.
453. Id. at 444.
454. Id.
455. See 343 P.3d 480 (Idaho 2015).
456. See, e.g., id. at 487 (“Grathol is wrong.”).
457. Id. at 493.
Recent Developments in Eminent Domain 1003

supreme court reversed the trial court’s refusal to assess fees and
costs.458 It also affirmed the valuation for the taken property made
by the trial judge over the objections of the property owner.459 Pretty
bad all around for the property owner.
But that is not what is fueling the dissonance with this case. It is ap-
preciated when a client does not have to eat his or her own fees and
costs, even more so when the other side plays fast and loose with
facts and law or drags out the case unnecessarily. Generally, it is
liked when courts are able to award fees. Especially, when a court
can award fees to a property owner in an eminent domain case.
But a condemnor?
What is concerning is that the Idaho Supreme Court gave short shrift
to the property owner’s argument that “an award to a condemnor would
unconstitutionally reduce the landowner’s award merely because the
landowner puts the government to its proof.”460 Instead, the court
treated this eminent domain case as if it was ordinary civil litigation.
However, condemnation cases are not the typical “Plaintiff v. Defen-
dant” civil litigation, where the plaintiff claims the defendant breached
a duty, broke a contract, or committed some wrong. Eminent domain
cases should be considered differently because the only reason the de-
fendant is being sued is that she owns property that is purportedly
needed for the public’s use. There is no culpability involved.
Those not bothered by the result might say that the rule allowing an
owner to be assessed fees and costs adopted by the Idaho court only
applies to what the court calls “extreme and unlikely” cases of prop-
erty owner abuse; that the court adopted standards, and thus safe-
guards, which would prevent condemnors from leveraging the power
to seek fees to put even more pressure on property owners to take
whatever is offered and forego theories of valuation that may seem
novel or aggressive.461 But exam the factors the court required to be
met before a condemnor can be awarded fees and costs:
(1) [W]hether the trial court correctly perceived the issue as one of discretion;
(2) whether the trial court acted within the boundaries of this discretion and consis-
tent with the legal standards applicable to the specific choices available to it; and
(3) whether the trial court reached its decision by an exercise of reason.462

458. Id. at 493-94.
459. Id. at 494.
460. Id. at 492.
461. Id. at 493.
462. Id. at 492 (quoting Telford Lands LLC v. Cain, 303 P.3d 1237, 1248 (Idaho
1004 The Urban Lawyer Vol. 48, No. 4 Fall 2016

Next, the court must apply the statute which allows the award of fees
and costs to the “prevailing party” in “any civil action,” and determine
which party “won.”463 In a condemnation case, this is not always
straightforward. Who “wins” when the government’s duty is to
award the full and perfect equivalent of the property taken? This
part of the opinion is not easy to follow, but the court summed up
the test this way:
First, the condemnor must have met all of Acarrequi factors that applied to the con-
demnor. Second, the condemnor’s case must have been brought reasonably, not
frivolously, and have adequate foundation. Finally, the condemnee must meet the
standard in [IDAHO CODE] section 12-121. Fees can be awarded under section 12-
121 only when the court “finds, from the facts presented to it, that the case was
brought, pursued or defended frivolously, unreasonably or without foundation.”
[IDAHO R. CIV. PROC.] 54(e)(1). When a district court decides in its discretion that
a case meets all three of these elements, the condemnor recovers its attorney fees.464

In Ada County Highway District v. Acarrequi, the court held that the
standards for fee shifting are not really standards, nor “rigid guide-
lines,” so it is really just up to the trial judge.465 Moreover, it is unclear
how the final factor listed above squares with the trial court’s finding
that the property owner’s arguments and conduct were not frivolous.
One reading of these factors is that, absent the trial court really
going off the rails, there is virtually no chance the appellate court
will reverse.
The court held the trial court did not apply these factors and therefore
sent the case back for a determination of whether the property owner
would be held liable for fees and costs.466 The supreme court, however,
assessed the owner fees and costs incurred by the government on ap-
peal, concluding that the property owner’s arguments were “unreason-
able,” “false and misleading,” “completely unreasonable and frivolous,”
and “only ask the Court to re-weigh the evidence.”467
The opinion does not discuss the lodestar but since the government
was represented by outside private counsel, a 470-lawyer firm, the
amounts are likely going to be massive.468 The concurring opinion
notes that “the State claimed it incurred $724,136 in attorney fees,
$13,079.06 in costs as a matter of right, and $167,103.59 in discretionary

463. Grathol, 343 P.3d at 492.
464. Id. at 493.
465. 673 P.2d 1067, 1071 (Idaho 1983), overruled by Grathol, 343 P.3d 480.
466. Grathol, 343 P.3d at 497.
467. Id. at 496-97.
468. See About the Firm, Holland & Hart,
(last visited May 21, 2016).
Recent Developments in Eminent Domain 1005

costs, for a total of $906,318.65.”469 The concurring justice also noted
that “the costs of defending would likely have been substantially less,
had the Attorney General’s office been properly funded and not obliged
to seek the assistance of outside counsel.”470 It seems unfair to hang the
fact that the Attorney General is underfunded on the property owner and
if liable for the government’s fees, it should not be on the hook for more
than what it would have cost the Attorney General’s office to prosecute
the case.
The concurring justice also seemed even more offended by the
property owner’s approach than the majority was, writing that it
treated “the condemnation proceeding as a gravy train.”471 Justice
Jones also castigated the property owner for not taking the settlement
which was offered to it by the condemnor because the settlement offer
was “reasonable.”472 How a settlement offer was entered into the re-
cord and why it is relevant is unclear.
The last question is whether this rule is going to be good for Idaho
condemnors as well as Idaho property owners. Will the courts look
with a similarly jaded eye when offers of just compensation end up
being much lower than the final award?

469. Grathol, 343 P.3d at 497 ( Jones, J., concurring).
470. Id.
471. Id.
472. Id.